By Bruce E. Chase

The trial is over; you have just successfully represented the complainant in a domestic violence action; the defendant has been found to have committed an act of domestic violence. While you are aware that N.J.S.A. 2C:25-29b provides the Court with vast powers to decide such issues as temporary custody, temporary support, visitation, temporary possession of personal property, you maybe unaware of the Court’s power relative to the award of counsel fees.

The authority for the award of counsel fees in a domestic violence case is found in N.J.S.A. 2C:25-29b(4) which provides that the Court may enter.

"An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.

"Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney’s fees, court costs, and compensation for pain and suffering. Where appropriate, in addition to compensatory damages" (emphasis added).

As family law practitioners, we immediately begin formulating our proofs regarding the victim’s "need" for an award of counsel fees and the defendant’s "ability to pay." In many cases, particularly where no other family action is pending between the parties, there is little factual information available regarding the defendant’s "ability to pay." Interestingly, the standards applied to fee applications in divorce actions, need and ability to pay, are not relevant in a domestic violence counsel fee application.

In Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992) the attorney for Mr. Schmidt argued that the counsel fee application was to be considered using the criteria set forth in N.J.S.A. 2A:34-23 and the standards enunciated in Williams v. Williams, 59 N.J. 229, (1971), including actual need and the ability to pay. The Court in Schmidt disagreed, holding that the domestic violence statute’s reference to "compensatory damages. As such, the Court in Schmidt held that attorney’s fee applications in domestic violence actions are not subject to the traditional analysis contained in N.J.S.A. 2A:34-23 and Williams. In other words, "need" and "ability to pay" are not considered.

It is interesting to note that the fee application made by the attorney in the Schmidt case, made in 1992, sought a fee of $2,332.05 for 13.1 hours of work, inclusive of $39.55 for disbursements. The amount sought was found to be reasonable. That attorney was said to have "specialized in family law" and have been practicing for 20 years; her hourly rate of $175.00 was also found to be reasonable. Inflation and other fiscal realities could easily be relied upon to support more realistic hourly rates based upon economics.

Armed with the Schmidt decision, you move for counsel fees in accordance with the domestic violence statute, present the Court with a proper Affidavit of Services, and hand your adversary (or the pro se defendant), a copy. Does your Affidavit of Services comply with R.4:42-9(b) and (c)? Does it address the factors enumerated by RPC 1.5(a)? Did you have the client sign a retainer agreement as required by R.1:21-7A?

AFFIDAVIT OF SERVICES

R 1:21-7A requires a written fee agreement, signed by the attorney and client, in all "family actions".

R 4:42-9(b) requires your fee application to be supported by an affidavit of services addressing the factors enumerated in RPC 1.5(a). The Affidavit "shall" include a recitation of other factors including, "the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought." If payment is sought for the work of "paraprofessionals", the Affidavit "shall" include a detailed statement of the time spent and services rendered by the paraprofessional, their qualifications, and the "billing rate for paraprofessional services to clients generally."

R 4:42-9(c) requires that the application "shall" state how much has been paid to the attorney and what provision, if any, has been made for the payment of fees to the attorney in the future. In a matrimonial action, the application shall also state the amount, if any, received by the attorney from pendente lite allowances. (Query whether this requires an attorney making a fee application in a domestic violence case to disclose pendente lite awards received in a divorce action between the same parties?)

If the attorney making the fee application also represents the party in a pending divorce action, separate billing files and statements should be meticulously maintained. This will allow fee applications in both proceedings to be made properly and accurately.

With respect to the requirement of R.1:21-7A and the disclosures required by R.4:42-9(c), many attorneys simply attach a copy of their itemized computer billing statements and a copy of the retainer agreement executed by the client. While this may be expedient, it may not be necessary or advisable. (Recall that upon filing, the Affidavit and supporting documentation will become part of the court’s file, making it available to anyone who requests it and pays the court’s copying charges.) The Affidavit of Services may instead set forth that a written retainer agreement has been signed by the attorney and the client and in summary fashion, further set forth the salient provisions regarding the amount of the retainer paid, hourly rates, etc. With respect to the itemization of services, if special or extraordinary services were provided, or, if the case presented unusual or novel circumstances, it may be appropriate and necessary to set forth in the Affidavit an explanation for the special or extraordinary services; to explain why a particular fee request is greater (or lesser) than what would ordinarily be expected.

RPC 1.5(a) provides that "a lawyer’s fee shall be reasonable." The factors to be considered in determining the reasonableness of a fee include the following:

1. the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
2. the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar legal services;
4. the amount involved and the results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the experience, reputation, and ability of the lawyers performing the services;
8. whether the fee is fixed or contingent."

With regard to factor (1), use the Affidavit as an opportunity to advise the court considering your fee application of any unusual, special or novel circumstances, including discovery efforts, preparation time, interviewing of witnesses, and legal research. Factor (2) is often ignored by counsel. However, if you were retained immediately before the final hearing, preventing you form attending to other work or causing other matters to be rescheduled, the Affidavit should so recite, As to factor (3), the Affidavit should set forth the attorney’s understanding as to what other attorneys, of similar "experience, reputation, and ability" charge for similar legal services. (I suggest that your Affidavit address factor (7) prior to factor (3).) As to Article (4), rarely does a domestic violence action lend itself to an analysis of "the amount involved". Nevertheless, do not miss the opportunity to advise the court of the significant results obtained. A finding that an act of domestic violence has occurred is usually a significant victory for the victim. In most circumstances, the defendant will be removed from the couple’s residence, if children are present. Visitation may be severely restricted or temporary terminated, temporary child support and/or alimony may be ordered. Perhaps even more significant, a finding of domestic violence will result in a presumption "that the best interests of the child are served by an award of custody to the non-abusive parent." N.J.S.A. 2C:25-29(11). As to factor (5), because the statute requires final hearings to be scheduled within 10 days of the filing of the complaint, time limitations are often imposed simply by the nature of the domestic violence proceedings. Time restrictions often result when the victim fails to seek counsel for several days after the incident. Factor (6) is self-explanatory. Care should be taken to address factor (7); it invites an attorney to delineate his/her credentials. If your practice is limited to family matters or if a substantial portion of your practice is concentrated in the area of family law, the Affidavit should so state. If you are a member of any professional association in the area of family law, such as the American Academy of Matrimonial Lawyers, the Affidavit should so state. If you have served as a guardian, an Early Settlement Program panelist, or otherwise served, the Affidavit should so state. Other accomplishments you can refer to include Bar Association Family Law Committee assignments, authoring any family law articles (such as this one), lecturing for continuing legal education, and the like. As to factor (8), RPC 1.5(d)(1) prohibits "any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof." Theoretically, while one can conceive of a contingency fee agreement with a victim in a domestic violence case which would be contingent upon a successful result and an award of counsel fees against the defendant, it is anticipated that all fee agreements in domestic violence cases will be fixed, meaning that work will be performed and billed on an hourly basis.

Bruce E. Chase is President of the Bergen County Bar Association and a partner with Chase and Chase, Esq. in Hackensack, New Jersey.

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