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Attorney's Fees/Pro Bono/Legal Aid/Indigency
© 1995 National Legal Research Group, Inc.
MONTANA: In re Malquist, 20 Fam. L. Rep. (BNA) 1560 (Mont. Sept. 20, 1994).
The mother brought an action against the father to recover for medical expenses incurred by the parties' daughter. The court ordered the father to pay $2,429 for the child's medical bills and to pay $300 in legal fees. The mother had been represented by a pro bono attorney. The father appealed the award of attorney's fees.
Reversing a 1981 decision, the Montana Supreme Court held that the mother was entitled to collect attorney's fees despite the fact she had incurred no legal expenses of her own. In Thompson v. Thompson, 193 Mont. 127, 630 P.2d 243 (1981), the court had held that a party represented by a legal services attorney could not recover attorney's fees. The Thompson court based its decision on the fact that the party could not show a personal necessity for such recovery. This term of the supreme court held, however, that since the Thompson decision the law regarding collection of attorney's fees for representation by a legal services organization had changed. Citing cases from California, Indiana, Missouri, and Wisconsin, the court said that in both family and nonfamily law cases, a majority of jurisdictions have held that legal services organizations are entitled to collect attorney's fees.
The court also cited policy reasons for its holding. It said the attorney's status was not the primary consideration for such an award but that the indigency of the client was paramount. The court further explained that legal services, especially in domestic cases, are essential in today's society. The court noted that the state had not enacted any laws or regulations that precluded such recovery. Addressing the father's argument that the mother would be receiving a windfall, the court said that that result could be avoided by awarding attorney's fees directly to the attorney. To hold otherwise, in fact, would result in a windfall to the nonindigent litigant who otherwise would be charged with attorney's fees were the opposing litigant not indigent. Finally, the court emphasized that its ruling might lead to improvements in the legal system, allowing legal organizations to be better financially able to provide legal services for the increasing number of indigent litigants. The court held that its ruling applied to pro bono and legal services organization attorneys. In re Malquist, 20 Fam. L. Rep. (BNA) 1560 (Mont. Sept. 20, 1994).
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