How to enforce an attorney fee award

A few months ago my mentee observed me enforce my attorney fee award through a family court contempt proceeding. Expecting me to prove the contempt through my client’s testimony, she was surprised when I testified first and asked my client very few questions when I called him as a witness.

The method attorneys typically use for enforcing fees awards is to call their client to the witness stand and ask their client about the opposing party’s non-payment and the attempts to collect payment. The problem is the client has little or no first-hand knowledge of these collection attempts. Typically, when attorneys are owed fees from an opposing party, the attorney handles collection attempts. Written communications or conversations to collect fees are most often between the attorney and the opposing party. Having the client testify about the attorney’s collection attempts is awkward. The client is likely merely repeating hearsay from the attorney, and probably lacks the detailed knowledge the attorney has. On cross examination the client may get details wrong and damage the case.

Thus, I typically handle most of the testimony at such fee enforcement proceedings. South Carolina’s Rule 3.7 of the Rules of Professional Conduct specifically authorizes attorneys to be witnesses when, “the testimony relates to the nature and value of legal services rendered in the case.” Under this rule I have always been able to testify regarding my attempts to collect fees on my client’s behalf.

If available, I try to have my client appear at such contempt proceedings to testify that he or she would owe me fees if the other side does not pay what is ordered (or that he or she would receive a refund if the other side paid as ordered). I do this because Calhoun v. Calhoun, 339 S.C. 96, 100, 529 S.E.2d 14, 17 (2000), held a pro se litigant could not recover attorney’s fees because “a pro se litigant, whether an attorney or layperson, does not become liable for or subject to fees charged by an attorney.” The family courts have interpreted this to mean an attorney cannot seek his or her own fees on collection efforts if those fees are solely for that attorney’s benefit.

The few times I have proceeded with an attorney fee collection rule without my client’s consent (because the other side owed me fees for work that my client had not paid me for but did not want me collecting either) the court has denied my fee requests for the collection effort. Thus, it is useful to have the client confirm the desire to collect fees. However no other testimony from the client is really needed. Further, if the client is unavailable that testimony is unnecessary so long as the attorney can truthfully testify that the client supports the collection effort.

Having one’s client testify about fee collection efforts when one can do so oneself is inefficient and awkward. It’s easier for the attorney to take the stand.

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