Court rules for attorney fees in pro bono cases

Friday, Sept. 23, 2005 | 10:15 a.m.

CARSON CITY -- The Nevada Supreme Court on Thursday ruled it was proper for a District Court to award attorney fees to a lawyer who was representing the client free of charge.

The court, in a unanimous decision written by Justice James Hardesty, also said District Courts may award attorney fees in paternity actions.

"We conclude that a party is not precluded from recovering attorney fees solely because his or her counsel served in a pro bono capacity," Hardesty wrote.

"While Nevada law has been silent on this issue, many courts have concluded an award of attorney fees is proper, even when the party is represented without fee by a nonprofit legal services organization."

He said the fact "that a government institution or private charity has provided legal assistance should not absolve other responsible parties of their financial obligations."

The case from Clark County involved Robert Miller and Sherry Wilfong, who had a child out of wedlock in December 2002. Miller filed a petition in court to determine paternity and also sought joint physical custody of the child.

Wilfong was represented free of charge by attorney Marshal Willick. At the end of the proceeding, District Judge Cheryl B. Moss ordered Miller to pay $3,000 in attorney fees to Willick.

The Supreme Court also imposed a $500 fine on attorney John T. Kelleher, who represented Miller. It said the pre-hearing brief submitted to the court by Kelleher was deficient and late.

"Several errors in the brief suggest that appellant's counsel carelessly prepared the brief," Hardesty wrote.

"To discourage like conduct in the future and to reiterate that this court will not tolerate lackadaisical practices in the pursuit of appellate relief, we impose sanctions on Miller's counsel personally," said the court. And it turned the matter to the State Bar of Nevada for investigation for possible disciplinary action.

The court said that in awarding attorney fees, the District Court must consider various factors including the quality of the work of the lawyer, the difficulty of the case, the work performed and the result obtained.

It said the court also must consider the disparity in income of the contestants when awarding the fees.

In this case, Willick took Wilfong's paternity case free of charge and won the case on custody, visitation and child support. He said he spent $27,000 in labor and costs. Miller, an electrician who earns $60,000 a year, started making payments of $100 a month to pay off the $3,000 but then stopped.

Willick then filed suit against him and won in District Court and now the Supreme Court. The court said the records reveals Willick "is an able advocate, the work was difficult and the result was favorable to Wilfong."