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Fee Waivers and Fee Shifting

By: New Haven County Bar Association Pro Bono Committee

Introduction: Fee Waivers

  • An individual with very little income may have the right to obtain a waiver of court fees applicable to a civil action.
  • To obtain such a waiver of fees, you must complete and file: An Application for Waiver of Fees - Form #JD-FM-75
  • Make sure to seek a waiver of all fees
  • Upon completion, file with the clerk

Introduction: Fee Shifting

  • Volunteering attorneys should not charge an eligible pro bono client for services performed. 
  • In addition, volunteers should not seek statutory attorney’s fees where the source of those fees is the client's award, such as may arise, for example, in social security disability cases.
  • However, nothing precludes pro bono attorneys from seeking statutory attorney’s fees pursuant to various provisions of Connecticut’s General Statutes.

Statutory Fees

During pro bono representation, the opportunity to seek statutory attorney’s fees may regularly arise under the following circumstances:

  • In family law cases seeking awards of alimony pursuant to Conn. Gen. Stat. § 46b-62
  • In defense of tenant eviction proceedings pursuant to Conn. Gen. Stat. § 42-150bb
  • In actions for the deprivation of civil rights pursuant to Conn. Gen. Stat. § 52-251b.

CGS § 46b-62 – Divorce Cases

Under Conn. Gen. Stat. § 46b-62, a court may order either spouse to pay the reasonable attorney’s fees of the other in  accordance with their respective financial abilities and the criteria set for awarding alimony by Conn. Gen. Stat. § 46b-82.

This includes parties represented by an attorney from a non-profit legal services organization. See Benavides v. Benavides. 526 A.2d 536 (Conn. App. Ct. 1987).

See also  Stancuna v. Stancuna, 2007 Conn. Super Lexis 2252 (Conn. Super. Ct. 2007) (“The lesson of Benavides ... is that the court must decide a party's request for counsel fees . . . without regard to the fact that the plaintiff is represented by a nonprofit corporation that did not charge her a fee.").; Buehler v. Buehler, 978 A.2d 1141 (Conn. App. Ct. 2009) (citing Benavides for assertion that trial court did not abuse its discretion in a marriage dissolution action by awarding fees in excess of $85,000 despite an agreement that their services were provided pro bono).

In Benavides, the Appellate Court considered the following:

  • Losing parties in family relations matters should not reap the benefits of free representation to the other party.
  • Parties should not be encouraged to litigate under the assumption that counsel fees will not be awarded in favor of the indigent parties represented by public legal services.
  • The realization that an attorney's fee may be awarded irrespective of the status of legal representation deters noncompliance with the law and encourages settlements.
  • Taxpayers pay for legal aid services and therefore have an interest in recovering where possible a portion of the costs in these situations.
  • The taxpayer’s compensation is the increased effectiveness of legal services programs.
  • Awarding counsel fees to nonprofit legal service entities encourages no-fee representation, thereby making the same more readily available to the poor.
  • The criteria for awarding alimony in General Statutes § 46b-82 does not include the court's consideration of counsel's status as a nonprofit or publicly funded organization when making an award of counsel's fees. 

CGS § 42-150bb – Landlord Tenant Cases

Conn. Gen. Stat. § 42-150bb provides in pertinent part:

"Whenever any... lease... to which a consumer is a party provides for the attorneys fee of the commercial party to be paid by the consumer, an attorney’s fee shall be awarded, as a matter of law to the consumer who successfully prosecutes or defends an action... based upon the... lease."

Where the landlord is entitled to attorney’s fees for any action arising out of a lease, so is the tenant. 

  • Martin v. Fellows, 1992 Conn. Super. Lexis 3432 (Conn. Super. Ct. 1992);
  • Rodriguez v. Bristol Housing Authority, 1994 Conn. Super. Lexis 845 (Conn. Super. Ct. 1994). 

Courts have also extended the Benavides analysis to award attorney’s fees pursuant to § 42-150bb to defendants in summary eviction actions.   

  • See, e.g., Fonsworth v. Housing Authority of the Town of Windsor, 2002 Conn. Super. Lexis 2807 (Conn. Super. Ct. 2002);
  • Figueroa v. FAH Redstone Ltd. Partnership, 2007 Conn. Super. Lexis 3238 (Conn. Super. Ct. 2007).

Conclusion

Volunteers who successfully obtain statutory attorney’s fee are encouraged to donate a suitable portion of the fees to organizations that benefit indigent persons.

See Rule 6.1 of the Model Rules of Professional Conduct (persuading attorneys who retain statutory attorneys' fees in cases originally accepted as pro bono "to contribute an appropriate portion of the fees to organizations or projects that benefit persons of limited means.")