Metropolitan News-Enterprise


Monday, November 14, 2011


Page 1


C.A. Upholds Award of Fees to Firm Represented by Of Counsel


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal has upheld an award of attorney fees to a Huntington Beach law firm which had retained a lawyer who was of counsel to it to represent the firm in a dispute with a former client.

Div. Three, in an Oct. 27 decision ordered partially published on Thursday, concluded an attorney-client relationship existed between the Law Offices of Edward A. Dzwonkowski and Laguna Beach practitioner Russ Boltz which entitled the firm to recover its legal expenses from Michael Spinella.

Spinella had hired the firm in April 2006 to represent him in a probate matter. The retainer agreement was between the Dzwonkowski firm and Spinella, and expressly excluded litigation from the scope of representation.

No new agreement was entered into when the matter proceeded to litigation, but Boltz, acting as of counsel to the Dzwonkowski firm, took over as the principal trial attorney.

Fee Arbitration

A dispute over the payment of attorney fees eventually arose between Spinella and the Dzwonkowski firm, and the firm retained Boltz to represent it in a mandatory fee arbitration before the Orange County Bar Association.

In February 2010, the arbitration panel ruled that Spinella owed the Dzwonkowski firm $33,306.16 in attorney fees. The firm then filed a verified petition to confirm the arbitration award, with Boltz listed as its attorney of record.

Orange Superior Court Judge Frederick Paul Horn granted the petition and entered a judgment for $34,045.53, which was the full amount of the arbitration award plus prejudgment interest and costs.

Motion Granted

The Dzwonkowski firm later filed a motion for an award of $16,344.41 in attorney fees purportedly incurred in the arbitration proceeding and in the confirmation proceeding. Horn granted the motion, finding, “Mr. Boltz was retained by Mr. Dzwonkowski to represent him in this proceeding and was acting in the capacity of ‘of counsel.’ ”

In an opinion by Justice Richard D. Fybel, the appellate court agreed with Horn.

Fybel explained that Boltz’s “of counsel” title did not preclude the firm from retaining him, but “[r]ather, the nature of the relationship, and whether fees were incurred, are the keys.”

The justice reasoned Boltz and Dzwonkowski did not share identical interests in either the fee arbitration or the proceedings to confirm the award, because even if the firm had not prevailed in arbitration or in the confirmation hearing, Boltz would still have been entitled to recover his hourly rate for his work on these matters.

In the unpublished part of the opinion, Fybel said the award of the full amount of fees requested was not an abuse of the trial court’s discretion, and, joined by Justices William W. Bedsworth and Eileen C. Moore, affirmed the postjudgment order.

The case is Dzwonkowski v. Spinella, 11 S.O.S. 6061.


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