231 Pa. Code § r. 1716 app. A

Current through Register Vol. 54, No. 41, October 12, 2024

Rule 1716 - Residual Funds

The Federal rule does not deal with counsel fees. They are governed by statute or traditional concepts developed by case law. Similarly, Rule 1716 contains no substantive provisions as to when an award of counsel fees may be made. It provides that they may be awarded only if applicable law so provides. However, the rule does empower the court, if fees are allowable, to regulate the amount of fees and expenses. The court is not bound by the amount or percentage of the fee set forth in a contingent fee agreement between the representative party and his attorney, although the contingent nature of the fee is a factor to be considered in approving the fee.

The rule sets forth a number of factors to be considered by the court in determining the amount of the fee.

(1) The time and effort reasonably expended by the attorney in the litigation. The keeping of accurate time records is therefore essential. These records should designate by whom the services were performed, i.e., partners, senior attorneys, associates, juniors, paralegals, etc., and their hourly rates. The time and effort factor is important, but it is not the sole criterion. The ingenuity and skill of counsel may in the course of only a few hours develop an entirely new theory of recovery where others have failed. On the other hand, the inexperience of an attorney may require the expenditure of needless, wasted hours.

(2) The quality of the services rendered. Counsel who possess or are reputed to possess more experience, knowledge and legal talent are entitled to and generally command compensation superior to counsel who are less endowed.

(3) The results achieved and benefits conferred upon the class or upon the public. The reference to the public benefit is not intended to incorporate an "attorney general concept" to support awards of attorneys' fees where such awards are not presently allowed under existing substantive principles or statutory authorizations. In Alyeska Pipeline Service Company v. Wilderness Society, 421 U. S. 240, 44 L. Ed.2d. 141, 95 S. Ct. 1612 (1975), the court expressly rejected the private attorney general theory where the award of attorneys' fees had not been statutorily authorized or could not be claimed under the established principles of equity relating to awards from the creation of the fund.

(4) The magnitude, complexity and uniqueness of the litigation.

(5) Whether the receipt of a fee was contingent on success.

It is important to emphasize that the order in which these factors are listed in the rule is not in any way intended to suggest an order of priority on comparative importance in the determination of the fee.

231 Pa. Code app A r. 1716