Can a trial court tell a litigant is a divorce that they don’t have to pay their lawyer more than a capped amount.?  On November 30, 2010, the Appellate Division in the unreported case entitled McClutchy v. McClutchy answered this question no.

In this case, what apparently was a hotly contested matter that went to trial, but which the trial judge deemed ordinary and not complex, at the end of the trial the court was called upon to assess the parties’ respective request for counsel fees that they were asking the other party to pay. Normally, each attorney would submit a Certification of Services required by Court Rule explaining and listing the work done. In this however, the trial court limited them to a one page submission about what was owed and what had been paid.  Thereafter, the trial judge, thinking that the parties’ respective fees were excessive ruled that the parties fees were capped at $50,000 each, despite that substantially more had been expended and was owed, and moreover, that the lawyers could not seek to collect the amount over and above.  One of the things the judge commented on was that he thought that the matter could have been handled by an associate, as opposed to experienced counsel of the client’s choosing.

The Appellate Division reversed this decision finding that it was beyond the scope of the trial court’s authority, especially where the client was not objecting to the fee.  Even if that were to have happened, there are other avenues to address this and the trial court could not do so.

This case, while clearly an aberration in the system, raises several issues.  First, if a client retains and wants pre-eminent counsel to represent them, it is not for the court to dispute their right to hire counsel of their choosing.  in addition, there are times where cases that seem "easy" or "garden variety" do not settle.  Some times it is because one party is unreasonable or acts in bad faith.  Some times it is because both parties are unreasonable.  Some times it is because one party does not want a divorce so they drag the matter out with the hopes that the other spouse will "come to his/her senses" and take him/her back.  Of course, by precluding the filing of a Certification of Services, the Court did not get to see what was done and perhaps did not get information as to why this seemingly easy case went to trial. 

This case is another cautionary tale.  Things aren’t always as they seem.  Litigant’s have a right to pursue issues in court and have a court make a decision on.  They also have a right to fully present their request for counsel fees to explain why the quantum of fees was what it was.

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