Ex-Wife Client Did Not Authorize the Filing of the Motion.
The Sixth District just decided an interesting family law matter that involved interpretation of In re Marriage of Borson, 37 Cal.App.3d 632 (1974) and the case law spawned in this specific niche of family law. It affirmed a lower court’s denial of a Borson request by ex-wife’s former counsel.
In re Marriage of Valentia and Piccinini, Case No. H035168 (6th Dist. Dec. 23, 2010) (unpublished), ex-husband--a high net individual--and ex-wife were embroiled in marital separation proceedings that resulted in lots of expenditures of attorney’s fees, with ex-wife’s lawyers putting in large fee compensation and fee advance requests--with referees and the lower court warning that the fees seemed to be inordinately high in some instances. (As the lower court remarked, “Respondent’s economic situation does not give license to a ‘bottomless pit’ advancement of fees.”) Ex-wife then terminated her lawyers services through an e-mail and told them they were not authorized to perform any more work on her behalf while she looked for new counsel. Ex-wife then sent a substitution of attorney indicating that she intended to represent herself. The next day, her former attorneys filed a Borson motion. (In Borson, attorneys were allowed to request fees post-discharge because the client desired some winding up services and consented to the filing of the fee request.) The lower court denied the Borson request, prompting an appeal by former attorneys.
The appellate court, in a 3-0 scholarly decision penned by Judge Elia, affirmed.
The case before it was not similar to Borson. After all, ex-wife never consented to the filing of the motion, told attorneys to cease all work, and did not give implied authority from her past cooperation with fee requests. Instead, the matter was more analogous to In re Marriage of Read, 97 Cal.App.4th 476, 481-482 (2002), where no implied authority was found where wife had already discharged the law firm and instructed it to take no further action on her behalf. Because the right to have fees paid belongs to the party (not to counsel), the Borson motion was properly denied based on the lack of the client’s consent.
This is a good case to read in this area, with a detailed discussion of the Borson-inspired jurisprudence.
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