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David Lee Wright ex rel. Kaitlyn Lee Wright v Wright

Case No. M2008-01181-SC-R11-CV (TN Sup. Ct., Mar. 29, 2011)

We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.

BACKGROUND

Filing and Settlement of Action

On May 12, 2005, nine-year-old Kaitlyn Lee Wright was seriously injured in an automobile accident. Marjorie Copley, Kaitlyn’s paternal grandmother (“Grandmother”), was driving Kaitlyn home from school in Fentress County when Grandmother’s vehicle collided head-on with another vehicle. Grandmother died in the collision. Kaitlyn sustained serious injuries and was admitted to the University of Tennessee Medical Center from May 12 to May 30, 2005, where she underwent multiple surgeries to repair her injuries. After her discharge, Kaitlyn completed a significant course of outpatient physical therapy and had a follow-up surgical procedure to remove hardware from her left ankle. The medical expenses for Kaitlyn’s treatment totaled $183,814.30.

At the time of Kaitlyn’s accident, her parents were divorced. Since 2001, David Lee Wright (“Father”) and Tracy Nivens (“Mother”) have shared joint custody of Kaitlyn. On June 9, 2005, Father retained attorney Johnny V. Dunaway to pursue Kaitlyn’s claim for personal injuries and executed a one-third contingent fee agreement with Dunaway. The fee agreement provided that, “[if] a claim is made on behalf of any infant or incompetent and if court rules or law requires, the fee will then be such as may be approved by the court.” The next day, Father, in his capacity as Kaitlyn’s parent and next friend, filed a complaint through counsel in Fentress County Circuit Court for common-law negligence and negligence per se. The complaint named as defendants Anita J. Wright, the driver of the other vehicle in the accident, and Ellen Collins, the administratrix of Grandmother’s estate. The complaint originally requested monetary damages of $250,000 but was later amended to request $500,000.

Mother retained a different attorney and filed her own personal injury action in Fentress County Circuit Court on June 23, 2005. In a November 29, 2005, hearing, Circuit Judge John McAfee dismissed Mother’s action and, citing the involvement of “competing parents,” appointed James P. Romer as Kaitlyn’s guardian ad litem in Father’s suit.
 

 

Judge(s): Cornelia A. Clark
Jurisdiction: Tennessee Supreme Court
Related Categories: Contracts
 
Supreme Court Judge(s)
Cornelia Clark
Janice Holder
William Koch, Jr.
Sharon Lee
Gary Wade

 
Trial Court Judge(s)
John McAfee

 
Amicus Lawyer(s) Amicus Law Firm(s)
John Day
Burke Keaty, II
Phillip Miller

 
Appellant Lawyer(s) Appellant Law Firm(s)
James Romer

 
Appellee Lawyer(s) Appellee Law Firm(s)
Johnny Dunaway

 

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claims against her were ultimately dismissed with prejudice. reasonable fee for services dunaway rendered on kaitlyn's behalf. the trial court made this other litigation matters over a period of approximately ten years. for kaitlyn's case, -5- kaitlyn's medical records. although other, less experienced lawyers might have settled for behalf and where law required. given tennessee law, this provision is particularly accomplished during that time, and when he spent that time--helps the trial court analyze $131,000 fee and asking the court to modify the application of rpc 1.5(a) for determining in this case we hold that the trial court, upon remand from the court of appeals, did appeared open and shut, but that was only because [plaintiff's] attorneys had concerning the amount of its subrogation interest for kaitlyn's medical expenses. bcbs further provided that, "[a]fter payment of contractual attorney fees the court will [be] fee. he attached an affidavit detailing the time and legal services that he had rendered in8 676-77 (tenn. 1980). while acknowledging the importance of factors specified in a code reasonable fee, each jurisdiction cited here considers at least some of the factors found in our . . . successful outcomes often make risks seem less risky in hindsight than at nashville `predominant factor' in setting a reasonable fee." id. at *3. deposition expenses incurred as guardian ad litem through the judicial settlement conference. this payment approach, romer asks us to reconsider in cases involving minors. circuit court for fentress county (6) the nature and length of the professional relationship with the we decline to emphasize specific factors or require other factors in the analysis. of the attorney's practice.22 to court approval. the estate subsequently withdrew its petition to sell the real property and (continued...) requires court findings concerning the rpc 1.5 factors that justify the fee. id. 50-6-226(a)(2)(c). based on a clearly erroneous assessment of the evidence, or an injustice to kaitlyn. singular calculation, inexperience, inefficiency, and incompetence may be rewarded while performance as guardian ad litem in this case. in pursuing this sensitive issue of challenging another future cases. to the contrary, adopting the lodestar may instead create pressure to accept low fee when the attorney represents a minor. in this case, after the attorney obtained a $425,000 counsel in fentress county circuit court for common-law negligence and negligence per se. policy limits. in addition to obtaining the settlement, dunaway negotiated to reduce bcbs's depend upon the particular circumstances of the individual case." white v. mcbride, 937 -24- court's exercise of discretion over attorney fees in settlements on a minor's behalf). as one consider the fee agreement between the attorney and the minor's next friend, because any considering the specific risks in a given case. this court explained that the case was neither "terribly given the result that dunaway obtained in the case, the extent to which that result actually in united medical corp., this court refused to adopt the lodestar approach in the settlement/guardianship of agm, 223 p.3d at 1283 (describing special procedures for trial number of hours that dunaway spent on kaitlyn's case but observed that, if those hours had pay $425,000 on behalf of kaitlyn. in addition to this amount, grandmother's estate agreed accordingly, we hold that a trial court should apply the factors set forth in rpc courts to protect the best interests of children"); see also sneed, 681 p.2d at 756 ("cases we do not mandate that trial courts compute the effective hourly rate in every case (just as we hold the individual case." white, 937 s.w.2d at 800. prescribing a fee structure would tend to expenses for kaitlyn's treatment totaled $183,814.30. was driving kaitlyn home from school in fentress county when grandmother's vehicle settlement. the trial court awarded dunaway "contractual attorney fees" of $141,666.66 and would be in the absence of a contract. in terms of procedure, the trial court should develop an evidentiary record, make attorney's fees in cases involving minors.16 its discretion "after its thorough analysis of the applicable factors" from rpc 1.5. wright ex because of the absence of proof concerning the time dunaway spent on the case, lack of 1383(d)(2)(a) (2003 & supp. 2010). 2002); shamblin v. sylvester, 304 s.w.3d 320, 331 (tenn. ct. app. 2009). we presume that difficulty of the questions, and the skill required to perform the services properly--the court appropriate in any agreement between a next friend and an attorney for legal services on a trial court agreed that dunaway tries the most jury cases of any plaintiff's attorney in the our workers' compensation law and the federal social security law resulted from legislative 270 s.w.2d 470, 475 (tenn. 1954), abrogated on other grounds by cracker barrel old romer again appealed the amount of the attorney's fee. this time, the court of no. 8136 john mcafee, judge an adult serving as next friend for a minor plaintiff cannot bind the minor to a $50,000 policy limits of grandmother's liability coverage, a sum well below the amount of to bind a minor to a contract for legal services. see wilson v. griffiths, 811 so. 2d 709, 713 (fla. dist. ct. (1) the time and labor required, the novelty and difficulty of the attorney's fee in cases involving a minor may result in a greater recovery for kaitlyn in this div. 1984); in re settlements of betts, 587 n.e.2d 997, 1002-03 (ohio ct. com. pl. 1991); cases. inconsistent with the courts' duty to protect their best interests. 1987) (explaining that "the court's duty to protect minors is consistent with the policy of in addition to settling the action against the estate, dunaway negotiated with bcbs the remaining $200,000 would be invested long term in a court-approved structured annuity representing minor tort victim where trial court considered each of the dr 2-106 factors and $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney's contingent particular circumstances of the individual case." white, 937 s.w.2d at 800. we disagree that 1004 (reasoning that an experienced and skilled attorney can accomplish tasks in shorter of what constitutes a reasonable fee is still a subjective judgment based on evidence and the where he practices, and he is able to command above-market rates for those services. the the case on the premise that there is no enforceable fee contract. in other words, the proper affirmed the lower courts' refusal to enforce a one-third contingency agreement where recovery under the made this finding in the absence of evidence about the extent of kaitlyn's recovery from her case where the compensation will remain uncertain until the end of the case. "[t]he fee four years of experience practicing law and recalled that dunaway represented "most" of the s.w.2d at 136; killingsworth, 104 s.w.3d at 534; accord pellegrin, 605 f.3d at 246; ex parte see shoughrue, 152 s.w.3d at 585. of money." pending in sixteen different east tennessee counties. he testified that he tries the most jury -14- county and thus borders on an amount this court has deemed "clearly excessive" in the attorney's fee since the adoption of rpc 1.5, these are neither new nor novel considerations challenge to attorney's fee and first appeal are taxed to the appellant, kaitlyn lee wright, and her surety, for which execution may issue concerning the tenth factor--whether the fee agreement is in writing--the court currently and at the time relevant to this litigation, this issue is governed by rpc 1.5, parents," appointed james p. romer as kaitlyn's guardian ad litem in father's suit. likewise, in settlements of betts, where the attorneys settled an action on behalf of in a more general sense. this is especially true when the plaintiffs are minors special responsibility to protect a minor's interests. see, e.g., nashville trust co. v. lebeck, hearing in this case--which detailed how much time he spent on the case, what work he attorney devoted to the litigation, the complexity of the claim, "and other pertinent matters." id. dunaway's fee request de novo. we recognize that the trial court considered the existence where the risk of non-recovery is relatively low, however, courts may reach a collect it amounted to a violation of dr 2-106, the lower courts' fee award was reversed. id. at 803. attorney's fee award contains a "striking void" if there is no "precise information as to the this case presents a question of first impression: how trial courts should determine employee's attorney must apply for approval of a proposed attorney's fee, and any award exceeding $10,000 settlement down to three percent in a case involving a plaintiff severely and permanently reasonable value of an attorney's services by considering the number of hours billed and the lawyer's kaitlyn could have contracted with an attorney, "more than likely that lawyer would have attorney's fee if kaitlyn were an adult. making the number of hours the predominant consideration in computing a reasonable who cannot "pay a reasonable fixed fee to obtain competent representation." alexander v. amount of time). the ability to achieve such a "skillful and expeditious disposition of amount of time spent on the case" by the attorney requesting a fee. see wright, 2007 wl approving the settlement. romer did not appeal the amount of the payment to bcbs. future, of the [minor] plaintiffs who are the court's special responsibility. duplicate entries for dunaway's appearance at the november 29, 2005, hearing on the motion damages that kaitlyn sustained. accordingly, dunaway turned to the assets of could recover in a case involving a minor, we would depart from our existing law that -6- his estranged wife's estate. id. because the one-third fee was so "clearly excessive" that the attempt to jurisdictions establishes that the factors currently set forth in the rule are sufficient for courts collided head-on with another vehicle. grandmother died in the collision. kaitlyn sustained which specifically addresses attorney fees. it provides: case, but there is no guarantee that it would bring a greater recovery for other minors in parties agree that 128.2 hours is the correct number of hours if one excludes the duplicate entry on time and labor involved in the case and the fee customarily charged in the locality. 70320 performing the services; -7- obtained a greater recovery from grandmother's estate than if he had merely settled the case rpc 1.5 factors, but made no specific findings as to any of them. the court then found that acknowledging that the court would determine the fee if a claim was made on an infant's while we reaffirm the longstanding rule in tennessee that a next friend representing settle. eighth judicial district. in hourly litigation, dunaway charges $400 per hour, at least double provides the amount of time and labor that the case required, but also is useful for assessing result in similar fees being awarded in cases with different factual and procedural histories.27 proper disposition of the $666.66 left over after the payment of dunaway's $131,000 fee and reimbursement court, williams v. baptist mem'l hosp., 193 s.w.3d 545, 551 (tenn. 2006); myint v. in contrast to romer, the amicus curiae urges us to place great weight on the risks prior to the entry of final judgment, romer filed a motion for permission to file an interlocutory7 unsupervised private sale of the real properties in grandmother's estate. while the resolution our court of appeals has consistently maintained that the factors governing the court rules or law requires, the fee will then be such as may be approved by the court." the concerning the sixth factor--the nature and length of the professional relationship judge john mcafee dismissed mother's action and, citing the involvement of "competing3 -20- maximum dollar limit in the fee agreement process, 74 fed. reg. 6080, 6080 (feb. 4, 2009) (increasing contingent nature of success, the quality of the attorney's work, and the results obtained. id.; tennessee law, a next friend cannot bind a minor by contracting with counsel for attorney's structured annuity)." the complaint would then be dismissed with prejudice. s.w.3d at 585. we need not consider the ohio rule further. time and labor will always be relevant in cases where the court is asked to determine a available insurance policy limits and did not have to undertake particularly thorough at 541; shoughrue, 152 s.w.3d at 585. of $10,000 to father, who would then pay romer's guardian ad litem fee. not stamped "filed" by the circuit court clerk until april 10, 2008, the day after the trial court heard 1.5(a), because the trial court had "reduced counsel's fee to a level that few attorneys would factors in rpc 1.5. concerning the first factor--the time and labor required, the novelty and (explaining that difficulty of establishing liability and quality of legal services rendered are benefits kaitlyn, the labor dunaway invested to obtain that result, and the discretion we assets of grandmother's estate. ultimately, the court did not make a finding as to the exact of the client's estranged wife. 937 s.w.2d at 801. while white did not involve a minor and the attorney accumulating during the litigation and consuming whatever greater recovery the minor might 337, 339 (pa. 1968); int'l dairy queen, inc. v. matthews, 126 s.w.3d 629, 631-32 (tex. inherent in a contingency fee agreement, arguing that such fee agreements should be include in determining the fee. see wright, 2009 wl 3246459, at *4. increases. see werner v. levine, 276 n.y.s.2d 269, 272 (sup. ct. 1967); abel v. tisdale, 619 p.2d 608, 612 attorney has reasonably expended on the case times a reasonable or customary hourly rate. romer also asks us to consider imposing a percentage cap on the attorney's recovery attorney faced. accordingly, an attorney representing a minor should keep a record of time "time expended and the customary hourly charges in the locality." id.; cf. tenn. sup. ct.19 or other investment. on september 8, 2006, not having received requested feedback from the assets of grandmother's estate upon discovering the inadequate insurance coverage. court analyzed dunaway's relationship with father, the parent and next friend, rather than dunaway's background jurisdictions indicates that many courts have used the same multi-factor analysis to determine performing the services. dunaway had previously represented father in his divorce from mother and in several we reasoned that the existing multi-factor analysis under dr 2-106 already included the high. while the parties stipulated that fentress county attorneys customarily accept personal entered an order allowing the sale of the property subject to review and supervision by the r. 8, rpc 1.5(a)(1) & (3). acknowledging this court's previous rejection of the lodestar risks that an attorney must consider before deciding whether to accept representation in a by a contract for attorney's fees. however, the trial court also stated it was "important" that david lee wright ex rel. kaitlyn lee wright v. anita j. appeal following the trial court's september 25, 2006 order, and then moved to amend that motion following court, unless otherwise ordered by local court rule. the contingent fee on the amount according to dunaway's affidavit, he spent 144.4 hours and advanced $3,031.05 of johnny v. dunaway, lafollette, tennessee, for the appellee, david lee wright, parent and standard of review to return $10,000 of the original fee award to father, as kaitlyn's parent and next friend, and minor's $737,000 recovery. 53 so. 3d at 59 & n.6. the court reasoned that the risk of non- id. at *4. the court of appeals concluded that the september 25, 2006 hearing was deficient in addition to the percentage cap in new jersey, romer also directs our attention to rule 71(i) of28 pursuant to their inherent power to protect minors, however, florida courts have the discretion not26 voluntarily waives the reimbursement for his fees and expenses in the second appeal and the appeal to this union fire ins. co. of pittsburgh (in re abrams & abrams, p.a.), 605 f.3d 238, 244 (4th time and labor in determining a reasonable attorney's fee. we anticipate that the attorney's federal court has explained, where the plaintiffs pay the attorney's fee out of their recovery: the plaintiff an adult. we recognize, of course, that contingency arrangements allow clients experience of the trier of facts," id., and "the reasonableness of the fee must depend upon the that the $141,666.66 contingency fee on a total recovery of $425,000 was a fair and russell ford, inc., 104 s.w.3d 530, 534 (tenn. ct. app. 2002). accordingly, a hourly basis but litigates personal injury cases on a contingent fee basis. when retained by re conservatorship of fallers), 889 p.2d 20, 22 (ariz. ct. app. 1994); padilla v. mcclellan, fees the lawyer charges; and we granted this appeal to determine the proper method for computing a reasonable attorney's against a judgment-proof defendant; the possibility of a contributory negligence defense f.r.d. 455, 461-62 (c.d. cal. 1978); madison cnty. dep't of human res. v. t.s. ex rel. dunaway's motion. originally requested monetary damages of $250,000 but was later amended to request court. case. another new comment explained that contingent fees are, like any other fee, subject to the brain-damaged after being struck by a vehicle. 605 f.3d at 248-49. the court remanded29 specific findings concerning each of the rpc 1.5(a) factors, and failure to acknowledge that contingency case, see united med. corp., 703 s.w.2d at 136; killingsworth, 104 s.w.3d at the benefit of the minor, who depends on the net recovery to compensate for injuries that submitting the case to a jury. app. 319, 336 (1930); cf. tuetken v. tuetken, 320 s.w.3d 262, 271 (tenn. 2010) agreed to reduce its $183,814.30 claim down to $62,517.74. father invested the net13 spent on the minor's case, even if that attorney does not ordinarily keep track of time as part fee award to twenty percent of the minor's recovery. id. at 47, 59. in white, this court relied on similar principles to affirm the lower courts' refusal to enforce an30 ultimately contributed $375,000 to the settlement. dunaway's affidavit indicates that he12 applying this holding, the court of appeals' ruling in the first appeal was correct. the trial court31 of appeals. we order attorney dunaway to reimburse the extra $666.66 remaining from the and are hence in no position to judge for themselves the value of the services matters charged at his $400 per hour rate. fee agreement automatically is contrary to law. in this state a next friend representing a dunaway testified that he had been practicing law for thirty-four years and had cases the trial court found that, because of the "very good" result that dunaway obtained, kaitlyn agm, 223 p.3d at 1286 & n.16. to pay all court costs, including the guardian ad litem's fee and deposition expenses in an (8) whether the fee is fixed or contingent; situated to disabled social security claimants and injured workers and, thus, deserve similar friends for all children, inc. v. lockheed aircraft corp., 567 f. supp. 790, 812-13 (d.d.c. 29-26-120 (2000), and workers' compensation cases, see id. 50-6-226 (2008). federal24 amount not to exceed $5,000. each party would pay its own discretionary costs. the memo4 reflect what some other jurisdictions have described as the "risk of non-recovery" in motors corp., 656 f.2d 161, 166 (5th cir. unit a sept. 1981); holbrook v. andersen corp., by letter dated september 11, 2006, romer recommended to dunaway that a hearing of any settlement or judgment was unpredictable." id. at 246, 249. the court identified "a attorney's fee awarded to dunaway at the remand hearing is less than thirty-five percent of attorney should receive in a case where a contingent fee would customarily be charged. that trial courts are not required to use the lodestar). we simply point out that the effective hourly rate emphasizing the lodestar will cause trial courts to exercise that case-by-case discretion more the minor . . . . if the court deems the compromise to be in the best interest of an attorney who obtains a favorable determination of past-due benefits for a claimant mayrecover25 concerning the ninth factor--prior advertisements or statements by the lawyer with context of determining a reasonable attorney's fee in a collection action. 703 s.w.2d at 137. common law. although all jurisdictions do not use precisely the same factors to compute a (2) the likelihood, if apparent to the client, that the acceptance of the consider, for example, that attorneys in a particular area typically accept personal injury discovery. id. at 59. accordingly, although an attorney of comparable skill and experience the $141,666.66 amount is equal to one-third of $425,000.5 legal services on the minor's behalf. the attorney and next friend should simply recognize since the united medical corp. decision in 1986, we added the lawyer's prior communications20 arrangements, based on everything, the totality of the circumstances, [and] based upon the attorney's fee. in the lodestar calculation, the court multiplies the number of hours that the allstate ins. co., 970 s.w.2d 920, 927 (tenn. 1998), and we will find an abuse of discretion -19- reasonableness of a fee: actually paid to dunaway out of kaitlyn's $425,000 settlement. f.m., 53 so. 3d at 58; settlements of betts, 587 n.e.2d at 1002-03; sneed, 681 p.2d at 757. promoting access to the courts through reasonable" fee awards). although both the motion and notice were dated september 8, 2006, the motion was file-stamped6 particular employment will preclude other employment by the lawyer. recovery. dunaway rendered on kaitlyn's behalf. as romer points out, the trial court's fee award factors to be considered in determining the reasonableness of a fee include the well respected in fentress county and by the court. the trial court noted dunaway's thirty- advanced expenses, and $62,517.74 to blue cross blue shield of tennessee ("bcbs") for plaintiffs in jury trials before the court. in this case on behalf of kaitlyn lee wright therefore, we affirm the judgment of the court court should not place weight on the nature of the fee agreement and instead should review the trial court issued its opinion from the bench. the court addressed each of the ten his capacity as guardian ad litem. tortfeasors. id. taken together, these cases establish that the trial court must consider the30 parties stipulated to the fees for contingency-based personal injury cases involving adult plaintiffs and for cf. mccombs v. n.j. state police, 576 a.2d 349, 351 (n.j. super. ct. law div. 1990) client; expenses and fees from the settlement (including the fee award at issue here), kaitlyn's net -22- inman, 903 s.w.2d 686, 696 (tenn. ct. app. 1995). furthermore, unlike hourly billing, coa-r3-cv, 2007 wl 4340871, at *6-7 (tenn. ct. app. dec. 12, 2007) ("first appeal"). and we must determine whether awarding such a large fee is, under the particular question is not whether the contract amount is reasonable but rather what the reasonable fee supreme court rule 8, rule of professional conduct 1.5(a). we further hold that the fee rendered by their attorneys or to protect fully their own interests and needs in the court of appeals affirmed. reviewing for an abuse of discretion, we hold that the trial on august 30, 2006, dunaway faxed a proposed settlement order to counsel for to dismiss mother's personal injury action.11 problematic, however. the supreme court of oklahoma has ably explained the flaw with at the time of kaitlyn's accident, her parents were divorced. since 2001, david lee chancery court to advise the chancellor of kaitlyn's personal injury claim and to prevent the lodestar has the potential to lead to lower total and net recoveries for minors, a result the employer or its insurer. tenn. code ann. 50-6-226(a)(1), (2)(a). in a case proceeding to trial, the whether the decision was illogical, clearly erroneous, or an injustice of properties. the record is unclear whether the insurance company paid the $50,000 into grandmother's unterkircher, 714 p.2d 193, 197 (okla. 1985); see also settlements of betts, 587 n.e.2d at attorney's fee in tort actions is controlled by a graduated scale tied to the amount of the be unable to establish liability against anita wright because kaitlyn had no recollection of the assets of grandmother's estate, located "deep pockets" to provide a settlement fentress county circuit court on june 23, 2005. in a november 29, 2005, hearing, circuit its subrogation claim for medical expenses. from the $217,794.60 of net proceeds, property records to determine the real estate holdings. he also appeared in fentress county "grossly in excess of . . . the upper end of `the fee customarily charged in the locality for similar services.'" on the other hand, minors are in no position to judge the value of legal services ultimately received no fee because of an ethical violation, its reasoning illustrates the problem with not had circulated. on november 9, 2006, the trial court issued supplemental orders concluding (okla. 1980). to a court rule or rule of professional conduct of general application, or to another case using the same approve and confirm a compromise of the matters in controversy on behalf of in the supreme court of tennessee and we decline to add other factors. instead, the trial court may conclude that certain factors contrary to the principle that the percentage recovery should be lower as the amount of the recovery (tenn. ct. app. 2004) (explaining that trial court applied the correct legal standard by nonetheless, other factors in rpc 1.5(a) require the trial court to take into account the often have long-term consequences. see donnarumma, 79 f.r.d. at 459; cf. settlements of depends, however, on the facts of the individual case. some cases present a greater or lesser insurer ultimately settled the case for a large amount: ordinarily be greater than in cases where the fee is fixed. see united med. corp., 703 fee basis of one-third of the recovery; and he handled other litigation on an hourly basis, absence of legislation creating such a fee schedule, we decline to develop our own and property and probate records, dunaway determined that the estate had sufficient assets to actions. involving minors impose a duty upon the trial court to protect the child's interest."); decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that that the court will disregard any agreement concerning fees and set a reasonable fee at the june 9, 2005, father retained attorney johnny v. dunaway to pursue kaitlyn's claim for where the plaintiff in a medical malpractice action has contracted with an attorney on a23 in a diligent yet relatively straightforward investigation to increase the amount of kaitlyn's the representation the "bedrock" of the reasonable fee analysis. cf. donnarumma, 79 f.r.d. concerning the eighth factor--whether the fee is fixed or contingent--the court found romer argues that we should make the time and labor required in conjunction with 1.5(a)(3). the court also made findings as to all the other rpc 1.5(a) factors based on the record indicates that dunaway's legal services are in high demand in the locality an injustice to kaitlyn. father and observed that father "is a professional and an educated person, and obviously the rpc 1.5 factors to determine a reasonable fee, the trial court applied the correct legal standard does not allow the appellate court to substitute its judgment for that of the trial effective january 1, 2011, we amended rpc 1.5. this amendment added preliminary language17 other states impose caps on fees more broadly. for example, in new jersey, the cornelia a. clark, c.j., delivered the opinion of the court, in which janice m. holder, client. unless the trial court abuses its discretion. kline v. eyrich, 69 s.w.3d 197, 203 (tenn. as guardian ad litem subsequent to the judicial settlement conference. his affidavit reflected of ethics, this court has also cautioned that "ultimately the reasonableness of the fee must actual level of risk. for instance, in pellegrin, the fourth circuit court of appeals vacated several factors relevant to the determination of a reasonable attorney's fee. it not only court, dunaway filed a motion in fentress county circuit court for approval of his attorney's check the reasonableness of a fee by computing the effective hourly rate. for example, in white, we recognize that the attorney is still entitled to a "reasonable" fee. williams, 82 s.w.2d at 541; provision in the aba's model rules, while others have developed their tests under the recovery. thus, we are persuaded that the record contradicts romer's assertion that the trial dollar fee." from the beginning of the representation, dunaway "immediately began the shall be binding on the minor . . . . the lesser of twenty-five percent of the past-due benefits or $6,000. see 42 u.s.c. 406(a)(2)(a); cf. $500,000. a minor to a contract for the payment of attorney's fees. williams, 82 s.w.2d at 541; shoughrue, 152 risk that the suit would be transformed into an exclusive workers' compensation claim. id. no. m2008-01181-sc-r11-cv - filed march 29, 2011 such agreement does not bind the minor. in determining the fee, attorneys representing essential elements which must be considered in setting reasonable fees--but, if time is the in analyzing whether the trial court abused its discretion in awarding the $131,000 fee, knowing the number of hours spent on the case also enables the court, in its discretion, to cross-22 court also determines the amount of fees for the attorney representing the minor plaintiff. court abused its discretion, we decline to substitute our judgment for that of the trial court. has permanent, significant scars and may need additional surgery at some point to remove the remaining the intermediate appellate court concluded that the trial court erred in "believ[ing] that the questions involved, and the skill requisite to perform the legal service properly. only if the court "applied incorrect legal standards, reached an illogical conclusion, based its if dunaway had risked the uncertainty, taken the case to trial, and obtained the same recovery, we33 settlement offers early in the case, regardless of whether early settlement is in the minor's "ultimately the reasonableness of the fee must depend upon the particular circumstances of romer submitted an affidavit detailing his expenses, time spent, and services rendered romer was ultimately paid $2,716 by grandmother's liability insurer for services rendered and4 (10) whether the fee agreement is in writing. the minor . . . , any order or decree approving and confirming the compromise in the determination of a reasonable attorney's fee. most recently, tennessee's disciplinary make risks seem less risky in hindsight than they were at the time," pellegrin, 605 f.3d at cir. 2010); green v. nevers, 111 f.3d 1295, 1299, 1303 (6th cir. 1997); hoffert v. gen. obtained shall be subject to approval by the court. guardian ad litem's opinion that settlement net the requested attorney's fee would be kaitlyn, because the additional hours spent trying the case would have reduced the effective hourly rate. maintaining that the amount of the attorney's fee was outside the scope of romer's duties as medical treatments and medical expenses. dunaway subsequently moved to amend the spent almost two years laying the groundwork to secure their client's interests. appeals affirmed dunaway's $131,000 fee award, holding that the trial court did not abuse original fee award to david lee wright, as parent and next friend of kaitlyn lee wright, for by the time mediation and settlement occurred, the case may well have dismissal by persuading opposing counsel that the overton county court had no jurisdiction because, father for any of kaitlyn's emergency needs that might arise before she reached majority. 1.5(a)(1)-(10) when determining a reasonable attorney's fee regardless of the client's age. (3) the fee customarily charged in the locality for similar legal services; however, where the client is a minor, the trial court should also bear in mind its special but included the time spent litigating the fentress county chancery court petition to sell the 113 cal. rptr. 2d 680, 685 (ct. app. 2001); iskander v. columbia cement co., 469 a.2d tenn. sup. ct. r. 8, dr 2-106(b) (2002); see also connors v. connors, 594 s.w.2d 672, reasonable fee and directing the payment of that fee from the settlement proceeds. (1) the time and labor required, the novelty and difficulty of the found that the agreement was in writing and admitted it into evidence. subrogation interest to a little more than a third of the original amount. even after deducting further decline the invitation to add a percentage cap or guideline to the factors listed in rpc fee award, and the court of appeals reversed. upon remand, the trial court conducted an the negotiated subrogation interest. instead, that amount appears in the september 25, 2006, judgment in cases involving the representation of a minor. romer points out that tennessee imposes risk of non-recovery than others, and a court should determine a reasonable fee based on the indeed, if the court did not consider such risk, then the analysis in such cases would likely rights and refusal to defend by the defendant's insurer; the prospect of obtaining a verdict rpc 1.5, and considers those factors whether the attorney represents a minor or an adult. were adequate to satisfy the injured minors' claims, counsel did not try to locate other (9) prior advertisements or statements by the lawyer with respect to the 534, the trial court's fee award compensates dunaway at an effective hourly rate more than of kaitlyn's personal injury action pending against the estate. that same day, the chancellor representation of minors. have accepted at the outset of litigation, when success was by no means assured and the size after the court of appeals' opinion reversing the fee award and remanding to the trial one such entry was for 5.0 hours, and the other entry was for 6.0 hours.11 end of the hourly fee customarily charged in the locality). this large number gives us pause, factors similar to those ultimately codified in rpc 1.5). and, a survey of case law from other the minor, city of nashville v. williams, 82 s.w.2d 541, 541 (tenn. 1935) (citing roberts the trial court's discretionary decision is correct, and we consider the evidence in the light accordingly, on september 25, 2006, the trial court entered a judgment approving the agreement provided that, "[if] a claim is made on behalf of any infant or incompetent and if contract would have compensated the attorney at an hourly rate more than six times as high as, and thus lodestar a reasonable attorney's fee for dunaway. a minor cannot contract with an attorney for the amount of the attorney's fee so as to bind the minor's settlement, requesting a hearing to review the proposed order and to determine at 465-66; t.s. ex rel. f.m., 53 so. 3d at 54; settlements of betts, 587 n.e.2d at 1002. the court in which the action, claim, or suit is pending . . . has the power to our decision should not be construed as diminishing the significance of the attorney's (3) the fee customarily charged in the locality for similar legal services. he heard dunaway's testimony and admitted exhibits into evidence. counsel for9 keisling v. keisling, 196 s.w.3d 703, 726 (tenn. ct. app. 2005). the abuse of discretion prior to a fiduciary entering into a contingent fee contract with an attorney for to protect the best interests of minors.31 dunaway's testimony and the accompanying exhibits establish the following facts. recovery in the case was "negligible" because the case presented "compelling facts" and tenn. app. at 336. however, recognizing that the appropriate inquiry is whether the trial the intermediate appellate court reaffirmed the legal rule that a next friend representing a regard for the minor's present and future needs when it rigorously analyzes the rpc 1.5 cases of any attorney in the eighth judicial district. dunaway accepts most cases on an entitled "memo of understanding--mediated settlement," grandmother's estate agreed to computation maybe a useful tool for a trial court determininga reasonable fee in the particular circumstances compensates dunaway at an effective rate of $1,021.84 per hour. the effective hourly rate32 attorneys practicing in fentress county typically charge $150-200 per hour in hourly cases property. concerned that an unsupervised private sale might significantly reduce the assets does not distinguish between cases involving adults and cases involving minors.26 the accident, grandmother was deceased, and the police investigative report placed fault with app. oct. 8, 2009) ("second appeal"). the intermediate appellate court rejected romer's settlement for a minor injured in an automobile accident, the trial court awarded the attorney 103, 106, 108-09 (n.j. super. ct. law div. 1983), aff'd, 484 a.2d 353 (n.j. super. ct. app. conclusion context of a fee award involving an adult plaintiff. see white, 937 s.w.2d at 801 (noting analysis (7) the experience, reputation, and ability of the lawyer or lawyers the case. judge mcafee conducted an evidentiary hearing on april 9, 2008, during which associate, mark orr, whose rate was $150 per hour in hourly litigation. on cross- attorney's one-third contingency agreement in a probate action to recover the client's share from the estate personal injuries and executed a one-third contingent fee agreement with dunaway. the fee mother filed a petition in overton county juvenile court to have kaitlyn declared dependent and neglected 1983) (internal citations omitted). indeed, tennessee has legislation pertinent to this issue: gary r. wade, william c. koch, jr., and sharon g. lee, jj., joined. had a follow-up surgical procedure to remove hardware from her left ankle. the medical1 furthermore, dunaway advanced all expenses to develop the case. although we ultimately affirm the judgment of the lower courts, we commend romer for his35 labor locating "deep pockets" adequate to compensate kaitlyn for her injuries and actually court applied the correct legal standard by analyzing the ten factors set forth in tennessee ct. app. 2010); statler v. dodson, 466 s.e.2d 497, 505-06 (w. va. 1995). many of these18 customarily charged in the locality for similar legal services" allows the trial court to insufficient to compensate the minor for her injuries). therefore, the trial court should have peck, 572 so. 2d 427, 429 (ala. 1990); settlements of betts, 687 n.e.2d at 1005. the trial grandmother's estate did not participate in the hearing or take a position on dunaway's fee. prohibiting any agreement, charge, or collection of an unreasonable fee or expense amount, but the factors properly; app. 2002). unreasonable, use the lodestar to compute a reasonable fee. see settlement/guardianship of cases involving adults. see shoughrue v. st. mary's med. ctr., 152 s.w.3d 577, 585-86 because he invested "a lot of work" in the case, he should receive the contracted-for knew what he was doing when he contracted with mr. dunaway to represent his daughter." grandmother's estate, which consisted primarily of real property. based on his review of the requested to approve the minor's settlement to be invested long term (i.e., through a grandmother's estate and to romer, inquiring whether they suggested changes or could informed dunaway that the estate would pay the settlements with a bank option rather than through the sale rules governing attorney's fees. such an analogy overlooks the reality that the fee caps in than he originally realized. while investigating the case, dunaway concluded that he would the maximum dollar amount for fee agreements to $6,000). essentially the same scale is also implemented should exercise its discretion using the factors set forth in tennessee supreme court rule the extent to which a court awards a greater fee because of the risk of non-recovery a question we have addressed frequently: how the trial court would determine a "reasonable" affirmed spent 9.9 hours responding to the petition to sell the estate's real property. court simply upheld the contingent fee agreement in determining the fee at the remand services rendered by plaintiffs' counsel, but also the needs, both present and accord to the trial judge, we cannot say that the fee award is illogical, clearly erroneous, or applicable legal standard makes clear that it would apply the same principles whether the case involved a no other attorney in the district whose hourly rate is as high. the parties stipulated that is more than five times greater than the rate of $200 per hour typically charged in fentress -17- for "a more rigorous analysis" of a list of twelve factors, including many found in our rpc shoughrue, 152 s.w.3d at 585. we consider, therefore, whether a trial court should add to grandmother. dunaway determined that the maximum possible insurance recovery was the specifically, romer directs our attention to the "lodestar" method for computing a reasonable lawyers in fentress county customarily charge a one-third contingency fee in personal injury nevertheless, the courts in tennessee and in these other jurisdictions also assume a cornelia a. clark, chief justice perform the legal services. see tenn. sup. ct. r. 8, rpc 1.5(a)(1). these considerations of the $425,000 settlement. pursuant to a september 14, 2006, letter, counsel for grandmother's estate amount to pay court costs or invest it with the other settlement proceeds on kaitlyn's serious injuries and was admitted to the university of tennessee medical center from different result, particularly where the best interests of minors are at stake. for instance, in medical corp., this unpublished opinion stated that "tennessee courts . . . traditionally determine[] the fixed mathematical rule" for determining what a reasonable fee is. killingsworth v. ted -21- if most cases resulted in courts awarding fees equal to the percentage cap, this pattern would run27 minor or an incompetent. see pellegrin, 605 f.3d at 243. (...continued)35 original fee award to father, who would then be required to pay that amount to romer for mother did not appeal this dismissal.3 findings concerning each of the factors, and then determine a reasonable fee that "depend[s] filed november 21, 2006, the parties agreed that anita wright was not at fault in the accident. father's in fentress county circuit court on september 25, 2006, for court approval of the contingency fee arrangements shift to the attorney some or all of the risk that the client's fees and that the trial court, when setting a reasonable attorney's fee in a minor settlement, after reviewing the ten factors, the trial court ruled that $131,000 was a fair and in tennessee supreme court rule 8, rule of professional conduct 1.5(a). additionally, the insurance policy limits, dunaway determined the value of the case and, by investigating complicated or novel" nor required particular skill. id. furthermore, the attorney lacked particular expertise -9- number of sticky problems" when the plaintiff's counsel took the case: the reservation of in developing kaitlyn's case, dunaway reviewed, analyzed, and summarized kaitlyn's acknowledged the "substantial amount of hours" reflected on dunaway's affidavit. the the trial court's determination of a reasonable attorney's fee is "a subjective judgment percentage cap difficulty. the trial court found that other, less experienced attorneys might have settled the court. if the court did not approve the sale, the order directed a public auction, again subject in that locality would generally charge a forty percent contingency fee, the court reduced the attorney fee."). curiae, tennessee association for justice. concluded the results were "very good" and reflected "good lawyering . . . to get this kind grandmother's property, though not liquid, was available and attachable. dunaway engaged causes an injustice to the complaining party." konvalinka v. chattanooga-hamilton cnty. concluded that the attorney did not achieve a good result, as the client died without receiving anything from particular, regarding the fees customarily charged in the locality, see tenn. sup. ct. r. 8, rpc 1.5(a)(3), the contingent fee agreement trumped all the other relevant factors set out in rpc 1.5(a)." id. f.m., 53 so. 3d 38, 54 (ala. 2010) (opinion on return to second remand); roos v. hirsch (in was separate from the $425,000 settlement. (continued...) settlement through mediation. id. at 58-59. the minor's attorney was already aware of the 937 s.w.2d at 801 (quoting tenn. sup. ct. r. 8, dr 2-106(b)(3)). at the conclusion of the litigation. s.w.2d at 137. we decline to make those factors the paramount or exclusive considerations (8) whether the fee is fixed or contingent. evidentiary hearing and determined that $131,000 would be a reasonable attorney's fee, and responsibility to protect minors' rights and best interests. therefore, the trial court shall not to consider a minor's best interests. nashville trust co., 270 s.w.2d at 475; wilson, 11 been billed at dunaway's hourly rate, the total would "roughly . . . be around a fifty thousand -15- concerns also require the court to give special scrutiny to the claim for attorney -3- by contrast, some factors will, perhaps, not be relevant in all cases. in the present case, for21 plaintiff. tenn. code ann. 29-26-120. in determining the fee, the court considers the time and effort the with the complaint, the group home's counsel contacted the attorney to propose a quick charged a third," the trial court stated that it "fully and firmly support[ed] the free market factors listed." accordingly, the court directed dunaway to reimburse $10,000 from the estate or directly to kaitlyn's representatives. dunaway's affidavit and the hours spent litigating the overton county juvenile court petition, but includes tenn. r. app. p. 11 appeal by permission; judgment of the court of appeals injuries. that the fee was contingent. or adjust its analysis of the factors set forth in rpc 1.5 when determining the reasonableness circumstances and factors supporting their determination of a reasonable fee in a given case. relationship with kaitlyn, his client in the case. these shortcomings in the record are not enough, however, (continued...) the complaint named as defendants anita j. wright, the driver of the other vehicle in the other counsel about the proposed order, dunaway prepared a motion for approval of a minor a client, dunaway discloses both that his hourly rate is $400 per hour and that he knows of factor dictating the fee award in this case. that fee agreement did not bind kaitlyn. williams, 82 s.w.2d implicitly considering the rpc 1.5 factors); hail, 212 s.w.2d at 56 (considering a set of the $375,000 difference between the settlement obtained at mediation and the insurance -23- the court concluded that the second factor--the likelihood, if apparent to the client, take place on the amount of the attorney's fee. dunaway replied to romer the same day, dunaway bore the burden of establishing the reasonableness of his fee request. id. at *6. reasonableness standard of rpc 1.5(a), based upon consideration of the relevant factors. court will also consider the novelty and difficulty of the questions and the skill required to 756 f. supp. 34, 38 & n.7 (d. me. 1991); donnarumma v. barracuda tanker corp., 79 on all the relevant rpc 1.5 factors. wright ex rel. wright v. wright, no. m2007-00378- (...continued)23 the hours spent litigating the fentress county chancery court petition. we agree with the court of appeals' conclusion of the case. in this case, dunaway's agreement with father contained a provision betts, 587 n.e.2d at 999 (describing ongoing physical limitations of minor victims who were ultimately, we decline to require that trial courts rely solely or even primarily on the miraculousprogress"and "doingextremelywell" followinghernumerous surgeries,anoutcomethatcounsel upon the particular circumstances of the individual case." white, 937 s.w.2d at 800. to provided factual findings, "fully supported by the record," that were "sufficiently detailed minor. williams, 82 s.w.2d at 541; shoughrue, 152 s.w.3d at 585. therefore, the trial an attorney representing a minor, we hold that courts should analyze the ten factors set forth damages far exceeded the available insurance proceeds, dunaway spent much of his time and litigation" with fewer hours may, in fact, produce a greater recovery for the client. (...continued)31 best interests. that way, the minor's next friend minimizes the risk of attorney's fees approve the order as drafted. the proposed order provided for payment from the settlement contingency fee. in its ruling from the bench, the court stated that it had "considered" the merit greater weight under the unique circumstances of a particular case. here, in relying on if necessary. we reiterate that our courts--both appellate and trial alike--have the responsibility 400386, at *7 (tenn. ct. app. apr. 20, 2001). citing a court of appeals case decided shortly after united particular case. see tenn. sup. ct. r. 8, rpc 1.5(a)(9). the rules of superintendence for the courts of ohio, which states: we note that the case did not present an extraordinarily high degree of novelty or we return to the result dunaway obtained in this case. as the trial court found, dunaway butsee mcdonnell dyer,p.l.c.v.select-o-hits,inc.,no.w2000-00044-coa-r3-cv,2001 wl19 result in unreasonably low fee awards that might soon dissuade attorneys from accepting the have discovered just as easily that the estate had minimal assets. "successful outcomes often concerning the fifth factor--the time limitations imposed by the client or 4340871, at *6 & n.6. an affidavit such as the one that dunaway submitted for the remand expenses on kaitlyn's behalf; he routinely litigated personal injury cases on a contingent10 that fee contract, if enforced, would compensate attorney at more than six times the upper minor cannot bind the minor by a contract with counsel for the amount of attorney's fees. (2) the likelihood, if apparent to the client, that the acceptance of the (6) the nature and length of the professional relationship with the applicable to the fee determination because the evidence indicated that no such time limitations existed. not be a factor." the court did note dunaway's testimony that any work on kaitlyn's case the payment of court costs or investment with the settlement proceeds. costs of this appeal next friend of kaitlyn lee wright, a minor. they were at the time, and the court should not have ignored those risks merely (5) the time limitations imposed by the client or by the circumstances; -13- -8- in any action, claim or suit in which a minor . . . is a party or in any case indeed erred in concluding that father's one-third contingent fee agreement with dunaway was the primary see hoffert, 656 f.2d at 166 (finding no abuse of discretion in fee award to attorney remand hearing and second appeal of attorney's fee tenn. code ann. 34-1-121(b) (2007); see also id. 29-34-105(a) (supp. 2010) (requiring for policy limits. to be precise, the $425,000 settlement is eight-and-a-half times greater may 12 to may 30, 2005, where she underwent multiple surgeries to repair her injuries. although dunaway's motion and accompanying affidavit were dated march 28, 2008, they were8 rel. wright v. wright, no. m2008-01181-coa-r3-cv, 2009 wl 3246459, at *5 (tenn. ct. customary hourly rate." id. this court, while asking us not to disturb the $10,000 award for fees and expenses in the first appeal, romer actions on a contingent basis. see tenn. sup. ct. r. 8, rpc 1.5(a)(3). the trial court may particular employment will preclude other employment by the lawyer; to compute this figure, the attorney's fee award of $131,000 is divided by 128.2 hours. the32 s.w.3d 515, 524 (tenn. 2010). court excluded the time dunaway spent litigating the overton county juvenile court petition imposed a graduated scale tied to both the amount of the recovery and the stage at which the -12- -25- -18- standard. that leaves us only to consider whether the trial court's fee award was illogical, in final analysis, given that the effective hourly rate of dunaway's fee award is so of an individual case. most importantly, whether or not trial courts use this tool, the attorney seeking a fee the necessary incentive to accept such cases in the future. see friends for all children, 567 not abuse its discretion in awarding attorney dunaway a $131,000 fee for services rendered factors in a particular case. the experience of our court of appeals and courts in other rendered on their behalf. any award of attorney's fees necessarily depletes funds paid for dunaway's testimony and the exhibits admitted into evidence, and ultimately awarded for one-third of the recovery and instead determined that one-fifth of each child's settlement additional hours on a case for the purpose of obtaining a higher fee. in any event, the complaint to double the demand for damages because kaitlyn's injuries were more severe v. hohenwald bank & trust co., 703 s.w.2d 133, 137 (tenn. 1986), and tennessee has "no after conducting the hearing upon remand following the first appeal, the trial court dunaway executed a written contingent fee agreement with father, who could not have 8, rule of professional conduct ("rpc") 1.5(a)(1)-(10). in response, dunaway argued that, able to ascertain from the record what factors the trial court considered in awarding the romer then sought this appeal, challenging the reasonableness of dunaway's interest rate of approximately 5.5%.14 reasonable fee. as the court of appeals observed in the first appeal, a record of an21 determination of attorney's fees is within the discretion of the trial court and will be upheld injury cases on a contingency basis, and while an attorney's fee is usually higher in a presided over by circuit judge john a. turnbull. according to a handwritten document (a) a lawyer's fee and charges for expenses shall be reasonable. the -4- there was "limited" uncertainty regarding liability. id. at 58. within days of being served in 42 u.s.c. 1383(d)(2). v. vaughn, 219 s.w. 1034, 1036 (tenn. 1920)); shoughrue, 152 s.w.3d at 585, we also minor cannot contract with an attorney for the amount of the attorney's fee so as to bind the testimony concerning the fee customarily considered reasonable in such cases. also, with respect to the plaintiffs. the record would have been stronger if dunaway and/or romer had submitted additional $17,794.60 would be deposited into a certificate of deposit held in trust and managed by (5) the time limitations imposed by the client or by the circumstances. t.s. ex rel. f.m., where the attorney represented a disabled minor severely burned in a involving a minor that exceeds $10,000). as part of the settlement approval process, the trial questions involved, and the skill requisite to perform the legal service award "based upon the evidence presented . . . , based upon the practice, based upon the might not be having this in-depth discussion about whether dunaway's fee award causes an injustice to sneed v. sneed, 681 p.2d 754, 756-57 (okla. 1984); in re trust estate of larocca, 246 a.2d f. supp. at 816; cf. leonard c. arnold, ltd. v. n. trust co., 506 n.e.2d 1279, 1281 (ill. professional relationship, was "reasonable" to retain dunaway for kaitlyn's case. (7) the experience, reputation, and ability of the lawyer or lawyers appeal by permission from the court of appeals, middle section a balance still due of $10,369.62. if we were to follow these jurisdictions and specify a percentage of what an attorney exceed twenty percent of the amount of the claimant's award, excluding medical costs voluntarily paid by not relevant to whether the new jersey fee cap applies). we are also not persuaded by cf. friends for all children, 567 f. supp. at 809. as an example, romer cites the practice actual risks present in a given case before deciding whether and how much more or less an the record does not definitively state the extent of kaitlyn's recovery from her injuries. kaitlyn1 awarded prior to reversal in the first appeal. the trial court has already ordered dunaway whirlpool bath at a group home, the alabama supreme court held that the trial court james p. romer, jamestown, tennessee, for the appellant, kaitlyn lee wright, a minor, in fees. in this situation, the court must consider not only the fair value of the a chambers hearing attended by minor and legal guardian for any tort claim settlement -11- (explaining, in the child custody context, that "tennessee statutes . . . impose a duty on trial fact that the reasonable fee analysis remains the same in cases involving adults is implied from the citation the trial court for a full hearing," and directed the trial court to consider and make findings in summary, we hold that no single factor found within rpc 1.5 merits special percentage caps on attorney's fees in medical malpractice actions, see tenn. code ann. 23 tenn. sup. ct. r. 8, rpc 1.5. while this court has not reviewed the reasonableness of an17 (4) the amount involved and the results obtained; ultimately recover on kaitlyn's behalf. when investigating grandmother's estate, he could [t]he court has a responsibility in such a case to oversee the fairness of the fee this amount, plus the liability insurer's payment of the $50,000 policy limits, constitutes the sum12 the trial court's reduction of the attorneys' compensation from one-third of an $18 million minor's behalf. id. at 248 (emphasis added). ankle hardware. kaitlyn's attorney represented to the trial court, however, that kaitlyn was "making some (4) the amount involved and the results obtained. on july 24, 2006, the parties settled the case during a judicial settlement conference furthermore, as the amicus curiae explains, adopting the lodestar to determine the the supplemental orders of november 9, 2006. in its final order, the trial court denied both motions. a "reasonable" attorney's fee when the attorney represents a minor. we begin by discussing 248, and we must remain mindful of those risks when determining what is a reasonable fee did not come quickly, dunaway achieved this result through mediation and settlement, soon recovery. see n.j. r. ct. 1:21-7(c). similarly, for contingency fees in tort cases, florida has struck by a vehicle); settlement/guardianship of agm, 223 p.3d at 1279 (discussing october 6, 2010 session opinion accident, and ellen collins, the administratrix of grandmother's estate. the complaint2 concerning the fourth factor--the amount involved and results obtained--the court for determining a reasonable fee listed in subpart (a)(1)-(10) remained the same. the amendment also added fee agreement with the minor's father. the court-appointed guardian ad litem appealed the on may 12, 2005, nine-year-old kaitlyn lee wright was seriously injured in an contract with counsel for the amount of the attorney's fee. to determine a reasonable fee for romer's argument that, because minors are innocent and vulnerable, they are similarly enforced when negotiated on behalf of a minor where the same fee would be anticipated were lodestar computation in determining a reasonable attorney's fee involving minors. as we the testimony and exhibits from the april 9, 2008, hearing do not identify the exact amount of13 the difficulty of the questions presented, the skills required, and the time constraints that the at 246-47. the fourth circuit reasoned that the trial court overemphasized the fact that the on september 21, and the notice on september 13. permissibly weighed as an "important" factor the parties' stipulation concerning the fee regarding fees charged, another factor potentially relevant to determining the reasonable hourly rate in a the court did reiterate that father was "an educated man" and, based on the prior services, an application for authority to enter into the fee contract shall be filed with the our holding is in no way intended to dissuade a minor's next friend from obtaining further consider that, in actions that attorneys accept on contingency, the fee should in the second appeal, the court of appeals remanded to the trial court to address romer's request16 commensurate with that value. by settling the case, dunaway avoided the uncertainty of attorney's fee: "[t]he time and energy expended in the performance of client services are will "be in pretty good shape when she reaches the age of majority." however, the trial court that accepting the particular employment would preclude other employment--"may or may determining a reasonable attorney's fee. regardless of the approach used, "the determination amount of the attorney's fee. the court of appeals reversed the fee award, "remanded to7 determining a reasonable fee. see, e.g., donnarumma, 79 f.r.d. at 467-69; t.s. ex rel. contingency fee basis, the court will grant a fee no greater than one-third of the damages awarded to the was a reasonable fee. 587 n.e.2d at 1002, 1005. the court reasoned "there never was any so closely to the number of hours spent on the case may perversely incentivize working each of these cases discusses the computation of attorney's fees in cases involving a minor. the18 after her discharge, kaitlyn completed a significant course of outpatient physical therapy and the record before the trial court and the trial court's analysis were not without their flaws. in34 approach" and "ha[d] no intentions of interfering with this." the record does not explain why this number is $10.05 higher than the amount of expenses10 and charge a one-third contingency fee for representing adult plaintiffs in personal injury to conclude that the trial court abused its discretion. a reasonable fee, whether the case involves a minor or an adult. e.g., pellegrin v. nat'l of $141,666.66 to dunaway for "contractual attorney fees," $3,021 to dunaway for5 contingency fee during the ensuing hearing before judge mcafee, romer argued that, under of an attorney's fee earned in conjunction with representing the interests of a minor. dunaway was deposed prior to the hearing. however, the deposition transcript was not available9 romer suggests this contract pre-approval procedure might be of some advantage in tennessee, if courts recovery is approximately four-and-a-half times the limits of grandmother's liability policy. by father. this petition was served on father the day after he retained dunaway for the personal injury case. app. 2004); in re settlement/guardianship of agm & llm, 223 p.3d 1276, 1283-84 (wash. -10- high, we almost certainly would have awarded a lesser amount if we were reviewing at the time of the hearing, and it is not included in the record on appeal. hearing.34 circumstances of this case, illogical, clearly erroneous, or an injustice to kaitlyn. courts should be mindful of their particular responsibility to protect the minor's best interests. argument that the number of hours times a reasonable hourly rate should be "the a comment clarifying that the stated factors are not exclusive and each factor may not be relevant in every enable appellate review, trial courts should clearly and thoroughly explain the particular of the estate, dunaway appeared before the chancellor on june 20, 2006, to advise the court charging $400 per hour. ten hours of work in kaitlyn's case were performed by dunaway's examination by romer, dunaway admitted that the affidavit inadvertently contained obtaining that recovery. because grandmother's estate was not liquid, dunaway reviewed judgment that same day.15 customarily charged in the locality for similar legal services. see tenn. sup. ct. r. 8, rpc completely barring recovery; and, because the plaintiff and defendant were co-workers, the attributed to "the resiliency of youth." determination of a "reasonable" attorney's fee in cases involving minors are the same as in case is resolved. r. regulating fla. bar 4-1.5(f)(4)(b)(i). the language of the florida rule settlement.6 minors must, on the one hand, receive sufficiently reasonable fees to ensure that they have hourly work. they reached no agreement, however, regarding personal injury cases involving minor country store, inc. v. epperson, 284 s.w.3d 303 (tenn. 2009); wilson v. mullen, 11 tenn. conclusions in the second appeal that the trial court did not err in deciding which hours to exclude or trial court commended dunaway in all three areas, noting that dunaway was "especially" dunaway prepared pleadings in response to the petition and ultimately obtained an agreed order of voluntary in the subject matter and was not precluded from undertaking other employment. id. finally, this court court petition. risk . . . of a non-recovery" because counsel was able to obtain a policy limits recovery by the fee award, a practice which we have now annulled. nonetheless, the court properly services--the trial court acknowledged the legal rule that the parties could not bind a juvenile united med. corp., 703 s.w.2d at 137; settlement/guardianship of agm, 223 p.3d at 1286 _________________________________ chancery court on april 25, 2006, to obtain court approval for a private sale of the estate's jurisdictions, like tennessee, have a rule of professional conduct based on the corresponding the division of a settlement award negotiated on their behalf. . . . these injustice to the minor. we therefore affirm the judgment of the trial court. guardian ad litem. on september 15, 2006, romer filed a response to the motion to approve attorney's fee in order to clarify the rule applicable to such cases, he has acted both in the best interests of claim will result in no recovery. id. acknowledged that a next friend's contract for attorney's fees would not bind a minor and exceeded its discretion by awarding the attorney an unreasonably large one-third share of the although the plaintiff was an adult at the time of the injury, the fourth circuit's discussion of the29 award was neither illogical, based on an erroneous assessment of the evidence, nor an divorce matters were also pending. dunaway spent 11.2 hours responding to the overton county juvenile original fee award to father, as kaitlyn's parent and next friend. father may apply this because the contingent nature of the fee was "one of the major factors to be considered" and the typical rate in fentress county. to dunaway's knowledge, at the time of the remand skillful and expeditious disposition of litigation is penalized unfairly." adams v. services rendered as guardian ad litem subsequent to the settlement conference. the trial obtain by holding out for a later, higher recovery. also, tying the amount of the fee award with the client--the court found that dunaway had a ten-year professional relationship with nature and length of the professional relationship with the client, see id. rpc 1.5(a)(6), we note that the trial father has been ordered to apply that amount to the payment of romer's guardian ad litem to determine what is a reasonable fee. john a. day, r. burke keaty, ii, and phillip h. miller, nashville, tennessee, for the amicus rule ("dr") 2-106(b) set forth the following eight factors as guides in determining the in workers' compensation proceedings, attorney's fees for counsel representingemployees cannot24 enough to avoid the uncertain outcome and additional hours associated with trial.33 precluded him from other personal injury cases paying a one-third contingency fee or hourly distributed the remaining settlement proceeds as stated in the proposed order that dunaway according to the record, kaitlyn and father are not related to anita wright. by an "agreed order"2 -2- in washington state, where courts first conduct a multi-factor analysis much like our rpc funded the litigation personally without taking out a loan specifically for that purpose. most favorable to the decision. henderson v. saia, inc., 318 s.w.3d 328, 335 (tenn. 2010); recovery of approximately $220,000 in certificates of deposit with an initial negotiated although mother lived there, father and mother litigated their divorce in fentress county, where post- were to enforce it strictly. that procedure is contrary to our law, however, because a next friend cannot bind s.w.2d 796, 800 (tenn. 1996) (citing hail v. nashville trust co., 212 s.w.2d 51 (tenn. ct. than the $50,000 limits of grandmother's liability insurance policy. furthermore, the based on evidence and the experience of the trier of facts," united med. corp. of tenn., inc. 1.5(a) to determine whether a requested fee is reasonable and then, if the requested fee is determined that $131,000 would be a fair and reasonable fee for the legal services that emphasis over the other factors in determining a reasonable fee in cases involving a minor, court memorialized this ruling in a written order filed may 2, 2008, and entered the final behalf.35 because at some later point in litigation the defendant found it in its interest to for attorney's fees and expenses incurred in that appeal. wright, 2009 wl 3246459, at *6. in his brief to process of preparing this case for trial" by, for example, reviewing and summarizing circumstances--the trial court did not find that any such limitations existed. hosp. auth., 249 s.w.3d 346, 358 (tenn. 2008); see also lee med., inc. v. beecher, 312 -16- wright et al. two minors struck by a drunk driver, the court of common pleas rejected counsel's request of the contingent fee agreement and cited the fee "arrangements" as one of several bases for wright ("father") and tracy nivens ("mother") have shared joint custody of kaitlyn. on dunaway's one-third contingency fee was not "unreasonable in any way." noting that, if relying on the lodestar calculation alone to determine a reasonable attorney's fee is two-and-a-half times his usual, uniquely high fee. satisfy a substantial judgment. because rpc 1.5(a) articulates a number of other factors that are also important to to permit appellate review"); ex parte peck, 572 so. 2d at 429 ("a reviewing court must be in the context of cases involving minors, however, a proposal to enforce a contingency -26- the child and in the finest traditions of the bar. needs to keep a record of the time spent on the case so the trial court can consider the time and labor required submitting a demand letter to the insurer. id. at 1004. furthermore, because the policy limits out of the original fee award of $141,666.66, the trial court provided no direction concerning the15 following: hearing, no other attorney in the entire eighth judicial district charged an hourly rate that filing and settlement of action analysis to compute a reasonable fee in a case without any minors. dunaway learned that grandmother's estate had filed a petition in fentress county effectively when minors are involved. settlement and advised counsel for grandmother's estate and romer that he would appear fee. we affirm that judgment and order dunaway to return the remaining $666.66 of the automobile accident. marjorie copley, kaitlyn's paternal grandmother ("grandmother"), of personal injury to a minor . . . caused by the alleged wrongful act of another, rendered on kaitlyn's behalf. this fee award is $10,666.66 less than the trial court originally law likewise imposes fee caps in social security cases. see 42 u.s.c. 406(a)(2)(a),25 concerning the seventh factor--the lawyer's experience, reputation, and ability--the reasoned in united medical corp., our existing multi-factor analysis already includes the enactment, rather than the exercise of judicial discretion based on ethical guidelines. in the dunaway a fee equal to 30.8% of the $425,000 settlement, less than one-third of kaitlyn's 1.5(a).28 app. 1948)). following the entry of the final judgment on january 18, 2007, romer appealed the dunaway's affidavit establishes that he spent over a year on the case, making accordingly, we affirm the trial court's $131,000 fee award to dunaway for services next day, father, in his capacity as kaitlyn's parent and next friend, filed a complaint through hourly rate, to reflect other factors such as those found in our rpc 1.5(a), including the concerning the third factor--the fee customarily charged in the area for similar legal however, at the beginning of the case, dunaway could not have known what he would mother retained a different attorney and filed her own personal injury action in n.16. in its discretion, the court may make some adjustment, usually as a percentage of the example, the trial court found that "time limitations imposed by the client or by the circumstances" were not the record also reflects that, on june 3, 2005, shortly after kaitlyn's release from the hospital,14 preparations to go to trial, if necessary. after determining that the extent of kaitlyn's respect to the fee charged--the trial court concluded that it "d[id]n't think that's an issue." case at insurance policy limits, but it was hardly an original strategy for dunaway to look to


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