Equitable Power to Award Attorney’s Fees: The Seductive Appeal of "Benefit"
Should an attorney whose services have conferred a nonmonetary “benefit” upon a person whom the attorney does not represent, be paid a fee from that person's funds? There is a seductive appeal in the notion that the beneficiary of legal services should pay the attorney's fee. Is it not “unjust” for that person to receive a “benefit” free of cost? Has not the attorney performed a valuable public service by ensuring that important legal rights were protected? Consider two different scenarios that could both present this issue. Case A: some beneficiaries of a trust sue the trustee and the other beneficiaries to clarify ambiguous terms in the trust instrument. The reasonable legal fees incurred by the trustee will be paid from the assets of the trust. Should the court order that fees incurred by the plaintiff beneficiaries also be paid from the trust? Case B: a local mental health agency petitions to appoint a guardian for a mentally and emotionally incompetent person, displacing the decision-making authority held by the incompetent's personal representative pursuant to a power of attorney. The agency's motive is to appoint a guardian who is amenable to having the incompetent placed in a community group home. The legal fees of the personal representative will be paid from the incompetent's assets. Should the court order that the fees of the agency also be paid from the incompetent's assets?
Lloyd C. Anderson, Equitable Power to Award Attorney’s Fees: The Seductive Appeal of "Benefit," 48 South Dakota Law Review 217 (2003).