Marriage of Burnett
This is a family law proceeding involving a mothers postjudgment order to show cause (OSC) to modify child support. The issue presented is whether the mothers former counsel had standing to seek an award from the father for the attorney fees she incurred in connection with the proceeding.
In 2001, before the parties separated, the father met with an attorney from Trope and Trope (Trope) and obtained advice about filing for divorce. During a one hour meeting, the issue of child support was discussed. The father did not retain the firm. In 2003, the trial court entered a judgment for legal separation, fixing the amount of child support. In 2005, Trope, representing the mother, filed the present OSC, seeking an increase in child support. The father moved to disqualify Trope based upon the 2001 consultation. The trial court granted the motion, finding a violation of the Rules of Professional Conduct.
Trope filed a motion seeking attorney fees from the father. The mother did not object to the motion. The father opposed it, arguing that Trope did not have standing to bring the motion and, in addition, the firms ethical violation precluded an award of fees. The trial court ruled that Trope had not acted unethically in undertaking to represent the mother, so the firms conduct did not bar or limit recovery. But the court concluded that Trope lacked standing to bring the motion because the mother had not expressly consented to it.
Court conclude that Trope had standing to seek attorney fees from the father because the mother consented, at least impliedly, to the bringing of the motion. Further, on remand, the trial court shall decide whether the reason for Tropes disqualification was serious, such that the firm should be denied some or all of its fees. If a fee award, partial or whole, is appropriate, the trial court must then decide whether the father should pay some or all of it. In that regard, the court shall determine whether the amount sought by Trope is reasonably necessary and whether payment by the father would be just and reasonable in light of the relative circumstances of the parties. Court therefore reverse the order and remand for further proceedings.
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