Collecting fees as the mediator or guardian

Posted Saturday, January 8th, 2011 by Gregory Forman
Filed under Attorney's Fees, Litigation Strategy, Of Interest to Family Law Attorneys, South Carolina Specific

For attorneys who also act as mediators or guardians ad litem, many family court judges’ interpretation of Calhoun v. Calhoun, 331 S.C. 157, 164-65, 501 S.E.2d 735 (Ct.App. 1998) can cause problems.  In Calhoun, Sally Calhoun, a family law attorney, sought fees at trial for the time she spent representing herself pro se.  She argued that she was entitled to fees because “the time and effort devoted to this action …diverted the time that she could otherwise have utilized in income producing activity.” The family court denied her fee request and the Court of Appeals affirmed, noting “an award authorized by statute presupposes an obligation by one person to reimburse another person who has provided legal representation” while “[a]n attorney who appears on his or her behalf does not incur an obligation to pay attorney fees.”

The Calhoun holding is explicable when the attorney is an actual party to the domestic litigation.  However, the rationale of the Calhoun case wouldn’t seem to apply when that attorney is bringing a rule to show cause [enforcement action] to collect a family court ordered fee for him or herself in the role of a party’s attorney, or as a guardian or mediator.  I have gotten around Calhoun when prosecuting a rule to show cause over a court-ordered attorney’s fee by noting that my client would be liable for my fee if the opposing party didn’t pay it.   However, since the court will not order fees for such collection efforts regarding guardian or mediation work, family court litigants can stiff the attorney/guardian or attorney/mediator with relative impunity.

Such a situation arose this week.  I had been court-appointed to mediate a divorce case filed in Berkeley County.  Each party owed me $271.25 and the wife refused to pay me. I filed and prosecuted a rule to show cause–taking up four hours of time–only to have the family court judge, The Honorable Wayne M. Creech, citing Calhoun, refused to award me fees for my time.   He noted I could have retained an attorney to bring the rule and that attorney could have been awarded fees.  However doing so would have saved me little time, as I still would have needed to draft my affidavit to support the rule and attend the rule hearing.

While I am unclear whether the Calhoun holding is limited to situations in which the attorney attempting to collect the fee is a party to the action, I had no intention of debating this issue with Judge Creech.  The appellate courts have provided no guidance on this issue because no family law attorney has deigned to appeal one of these decisions.  Were I a family court judge, I would probably take the conservative approach Judge Creech did.

However, I simply can’t justify spending four hours to collect $271.25.  After the hearing I asked Judge Creech if I could approach the bench.  I informed him that while I enjoyed being a court-appointed mediator and guardian in his county, it was problematic if litigants could force me to bring collection actions for my fee and I could not obtain reimbursement for my time devoted to such collection efforts.  I asked if he had any potential solutions.

One reason I adore Judge Creech is that he appears to have spent more time thinking about the right way to administer justice within our family court system than any other person I know.  He did not have to spend time thinking about his response because he, clearly, had already spent time thinking about this dilemma and possible solutions.  He concurred that it was unfair that court-appointed mediators and guardians could not automatically collect fees for their time spent enforcing court-ordered fee awards.  But he had a solution–actually a few solutions.

The first solution he offered was contractual.  He noted that nothing prohibits mediators from writing into their mediation agreements a provision that they will be entitled to their hourly rate as attorneys (I charge a higher hourly rate as an attorney than I do as a mediator or guardian) for any time required to collect mediation fees.  With such a contract in hand, family court judges would have contractual authority to award fees.  One could do something similar with guardian cases but typically litigants don’t sign agreements with the guardian.

His other solution was to add language to court orders allowing the guardian or mediator to obtain fees at his or her typical hourly rate for efforts necessary to enforce court-ordered fee obligations.  He suggested that if guardians and mediators asked the judges appointing them to include such provisions in their orders, judges would almost certainly do so.  Even if the order initially appointing the guardian did not contain such a provision (which is likely to happen since the guardian typically is not involved in the drafting of the order appointing him or herself as guardian) the guardian can always ask for such a provision in the final order of the case.  The parties can’t really object to such a provision, as it would only come into effect if a party disobeyed the court order and litigants are not going to want to give a family court judge this concern when that judge is deciding their case.

Based on Judge Creech’s advice I have added to my mediation agreement a provision that the parties will pay my hourly rate as an attorney for any time I spend collecting my fee.  I am going to seek language in orders regarding my mediation and guardian fees with the same protection.  South Carolina family law attorneys who accept court-appointed mediation or guardian work are encouraged to do the same.

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