Attorneys Have No Independent Right to Have Opposing Parties Pay Their Fees; Paternity of C.B. v. Davis

We represent different clients for lots of reasons, and we would like to be paid for those efforts in most cases. Sometimes, that payment can come from the opposing party. But be warned—you have an independent right to seek those fees from the opposing party.

Mother and Father had two children, and Father sought to have his paternity established. Father was established as the father of the children, but he and Mother disputed issues like custody and parenting time. Mother was eventually awarded sole legal and primary physical custody of the children, Father was awarded parenting time, and Father was ordered to pay the attorney’s fees of Mother’s counsel.

Father appealed, and Mother sought appellate attorney’s fees in the trial court. While the first appeal was pending, Father sought another appeal. Mother successfully moved to dismiss this appeal and filed a second petition for appellate attorney’s fees with the trial court.

After the appeal was over, the trial court held a hearing on Mother’s requests for appellate attorney’s fees. At the hearing, Mother’s attorney, Kavadias, submitted affidavits that (1) Mother owed $35,529.65 for the first appeal and had paid $8,021.25 toward it and (2) Mother owed $3,277.60 for the second appeal but had not paid anything toward it.

Before the trial court could rule on this motion, Mother and Kavadias had a falling out and Mother fired Kavadias. Kavadias withdrew from the case, Mother withdrew the request for fees, and Kavadias then moved to intervene to continue pursuing the attorney’s fees. The trial court granted that motion, and then awarded the fees Kavadias sought to her. Father appealed.

Kavadias argued that I.C. 31-14-18-2 gave her the right to intervene to request attorney’s fees. “But this statute only provides that attorneys may enforce attorney-fee orders in their own name; it does not authorize attorneys to request attorney fees in their own name.” Instead, the Court found that Mother, not Kavadias, was responsible for litigating the attorney’s fee issue.

Here, when Kavadias sought to intervene, the trial court had not yet ruled on Mother’s petitions for appellate attorney fees from Father. And before the trial court ruled on Kavadias’s petition to intervene, Mother withdrew her petitions for appellate attorney fees from Father. Because Mother was no longer asking the trial court to order Father to pay her fees, Kavadias did not have a right, “separate and apart” from Mother, to request them from Father.

If Kavadias is unhappy with this result, then she can get the unpaid fees from Mother, not Father.

Lessons:
1. An attorney does not have a right to seek an award of attorney’s fees independent of her client.
2. Once an attorney has a fee award in her name, then she has an independent right to collect on that award.

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