Thoughtful Guidance From Skilled Attorneys

Are Attorney Fees Recoverable in Pro Bono Cases

On Behalf of | Jul 23, 2020 | Firm News


The Need for Pro Bono Attorneys

More and more people are needing legal assistance either pro bono or at a reduced cost.  The Indiana State Bar Association has a Pro Bono Committee that is charged with developing a plan. The Indianapolis Bar Association promotes that its members take on what they call Pro Bono Opportunities.  The Marion County, Indiana Circuit and Superior Courts have a Family Resource Page that links you to many resources.  Rule 6.1 of the Indiana Rules of Professional Conduct states: “A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.”  Attorneys are now required in Indiana to report their pro bono hours or contributions.  See Rule 6.7 of the Indiana Rules of Professional Conduct.  Once an attorney accepts a pro bono case that attorney may not seek a fee from her or his client.  This, however, does not mean the attorney cannot seek a fee elsewhere.

Are Attorney’s Fees Recoverable in Your Case?

If the attorney is appointed under I.C. 34-10-1-2, the attorney is not undertaking the case pro bono, the attorney is just being paid by the county and not the client.

What if a court does not appoint you where you are expecting a fee from the client or the county?  The first inquiry the court must make is whether attorney fees are recoverable in this type of case.  For a review of cases when an attorney can recover fees for presenting his client go to my article titled Attorney Fees in Indiana.

Many times, attorneys take matters pro bono in the family law area.  In paternity actions attorney fees are recoverable by statute.  Attorney fees may be awarded in paternity actions pursuant to I.C. 31-14-18-2(a)(2).[1]  The statute states “Sec. 2. (a) The court may order a party to pay:  … (2) a reasonable amount for attorney’s fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.”  Similar provisions appear in the child support and divorce statutes. I.C. 31-16-11-1 and I.C. 31-15-10-1.

Now many times when an attorney takes a case pro bono the other party is also poor or of limited means and the attorney knows that no fees will be forthcoming.  In some cases where the other party is pro se the attorney is forced to expended substantially more time than would normally be expected.  Many pro se parties refuse or fail to comply with court orders, you are required to file additional pleadings, have more hearings, and spend more time trying to resolve issues that had there been attorney on the other side you would not have to do.  Another basis of awarding fees is under I.C. 34-52-1-1, which states a court may award attorney fees against a party that “…continued to litigate the action after the party’s claim or defense clearly became frivolous, unreasonable, or groundless…” or if a party “…litigated the action in bad faith…” .

To deny attorney fees in this situation could chill the attorneys from accepting pro bono cases if they know that they may expend substantially more time in a matter than normal and rewards the type of actions taken by a party who causes delays and wastes the court’s time.

By Taking a Case Pro Bono Do You Forfeit

the Opportunity to Be Paid by the Other Party?

The next issue is whether a court may award attorney fees to an attorney who has taken a case pro bono.  This question was answered in 1992 by the Indiana Supreme Court in Beeson v. Christian, 594 N.E.2d 441 (Ind. 1992).  In Beeson, 594 N.E.2d 441the Petitioner’s attorney took the case with the understanding that Petitioner would not be responsible for any attorney fees to her attorney.  The Court in vacating the Indiana Court of Appeals and affirming the trial court’s award of attorney fees found that the statute permitting the award of attorney’s fees in dissolution actions (similar to the statute permitting the award of such fees in paternity actions) gave someone who otherwise could not afford it access to an attorney’s services and “[t]hat public policy would be undermined if we were to hold that a party must be personally obligated to pay attorney fees before the trial court could order the other party to pay those fees.”  Beeson, 594 N.E.2d at 443.  The Indiana Supreme Court continued:

This situation is analogous to some pro bono arrangements where an attorney agrees to represent a client and to accept a fee only if one is awarded by the trial court and paid by the other side. As here, the client is never legally obligated to pay the fee, and the attorney is paid only if the trial court awards a fee. Such an arrangement supports the process of allowing access to the courts to those with limited means.

Id.  Beeson clearly supports this court’s authority to grant attorney fees in such a case.

            Further support of awarding fees in a pro bono situation where the attorney undertook a case pro bono with no agreement to pursue their client for fees is Kleine-Albrandt v. Lamb, 597 N.E.2d 1310 (Ind. Ct. App. 1992).  In that case the Plaintiff was represented by a nonprofit legal organization and the trial court denied an award of attorney fees to that organization as the Plaintiff did not incur any fees.  The Indiana Court of Appeals citing Beeson stated, “Because we hold that the fact that Kleine-Albrandt did not incur any expense cannot act as a bar to the assessment of attorney’s fees to Student Legal Services in this action, we reverse and remand to the trial court for the award of a reasonable fee.”  Kleine-Albrandt, 597 N.E.2d at 1313.

Prepared by Richard A. Mann of Mann Law, P.C. Attorneys at Law,

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