Wright Ex Rel. Wright v. Wright

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
October 6, 2010 Session

DAVID LEE WRIGHT EX REL. KAITLYN LEE WRIGHT v. ANITA J.
WRIGHT ET AL.

Appeal by Permission from the Court of Appeals, Middle Section
Circuit Court for Fentress County
No. 8136 John McAfee, Judge

No. M2008-01181-SC-R11-CV - Filed March 29, 2011

We granted this appeal to determine the proper method for computing a reasonable attorney’s
fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000
settlement for a minor injured in an automobile accident, the trial court awarded the attorney
$141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent
fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the
fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an
evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and
the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial
court applied the correct legal standard by analyzing the ten factors set forth in Tennessee
Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee
award was neither illogical, based on an erroneous assessment of the evidence, nor an
injustice to the minor. We therefore affirm the judgment of the trial court.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Affirmed

C ORNELIA A. C LARK, C.J., delivered the opinion of the court, in which J ANICE M. H OLDER,
G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

James P. Romer, Jamestown, Tennessee, for the appellant, Kaitlyn Lee Wright, a minor, in
his capacity as guardian ad litem.

Johnny V. Dunaway, LaFollette, Tennessee, for the appellee, David Lee Wright, parent and
next friend of Kaitlyn Lee Wright, a minor.
John A. Day, R. Burke Keaty, II, and Phillip H. Miller, Nashville, Tennessee, for the Amicus
Curiae, Tennessee Association for Justice.

OPINION

BACKGROUND

Filing and Settlement of Action

On May 12, 2005, nine-year-old Kaitlyn Lee Wright was seriously injured in an
automobile accident. Marjorie Copley, Kaitlyn’s paternal grandmother (“Grandmother”),
was driving Kaitlyn home from school in Fentress County when Grandmother’s vehicle
collided head-on with another vehicle. Grandmother died in the collision. Kaitlyn sustained
serious injuries and was admitted to the University of Tennessee Medical Center from
May 12 to May 30, 2005, where she underwent multiple surgeries to repair her injuries.
After her discharge, Kaitlyn completed a significant course of outpatient physical therapy and
had a follow-up surgical procedure to remove hardware from her left ankle.1 The medical
expenses for Kaitlyn’s treatment totaled $183,814.30.

At the time of Kaitlyn’s accident, her parents were divorced. Since 2001, David Lee
Wright (“Father”) and Tracy Nivens (“Mother”) have shared joint custody of Kaitlyn. On
June 9, 2005, Father retained attorney Johnny V. Dunaway to pursue Kaitlyn’s claim for
personal injuries and executed a one-third contingent fee agreement with Dunaway. The fee
agreement provided that, “[if] a claim is made on behalf of any infant or incompetent and if
court rules or law requires, the fee will then be such as may be approved by the court.” The
next day, Father, in his capacity as Kaitlyn’s parent and next friend, filed a complaint through
counsel in Fentress County Circuit Court for common-law negligence and negligence per se.
The complaint named as defendants Anita J. Wright, the driver of the other vehicle in the
accident,2 and Ellen Collins, the administratrix of Grandmother’s estate. The complaint
originally requested monetary damages of $250,000 but was later amended to request
$500,000.

1
The record does not definitively state the extent of Kaitlyn’s recovery from her injuries. Kaitlyn
has permanent, significant scars and may need additional surgery at some point to remove the remaining
ankle hardware. Kaitlyn’s attorney represented to the trial court, however, that Kaitlyn was “making some
miraculous progress” and “doing extremely well” following her numerous surgeries, an outcome that counsel
attributed to “the resiliency of youth.”
2
According to the record, Kaitlyn and Father are not related to Anita Wright. By an “Agreed Order”
filed November 21, 2006, the parties agreed that Anita Wright was not at fault in the accident. Father’s
claims against her were ultimately dismissed with prejudice.

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 Mother retained a different attorney and filed her own personal injury action in
Fentress County Circuit Court on June 23, 2005. In a November 29, 2005, hearing, Circuit
Judge John McAfee dismissed Mother’s action3 and, citing the involvement of “competing
parents,” appointed James P. Romer as Kaitlyn’s guardian ad litem in Father’s suit.

On July 24, 2006, the parties settled the case during a judicial settlement conference
presided over by Circuit Judge John A. Turnbull. According to a handwritten document
entitled “Memo of Understanding—Mediated Settlement,” Grandmother’s estate agreed to
pay $425,000 on behalf of Kaitlyn. In addition to this amount, Grandmother’s estate agreed
to pay all court costs, including the guardian ad litem’s fee and deposition expenses in an
amount not to exceed $5,000.4 Each party would pay its own discretionary costs. The memo
further provided that, “[a]fter payment of contractual attorney fees the Court will [be]
requested to approve the minor’s settlement to be invested long term (i.e., through a
structured annuity).” The complaint would then be dismissed with prejudice.

Challenge to Attorney’s Fee and First Appeal

On August 30, 2006, Dunaway faxed a proposed settlement order to counsel for
Grandmother’s estate and to Romer, inquiring whether they suggested changes or could
approve the order as drafted. The proposed order provided for payment from the settlement
of $141,666.66 to Dunaway for “contractual attorney fees,” 5 $3,021 to Dunaway for
advanced expenses, and $62,517.74 to Blue Cross Blue Shield of Tennessee (“BCBS”) for
its subrogation claim for medical expenses. From the $217,794.60 of net proceeds,
$17,794.60 would be deposited into a certificate of deposit held in trust and managed by
Father for any of Kaitlyn’s emergency needs that might arise before she reached majority.
The remaining $200,000 would be invested long term in a court-approved structured annuity
or other investment. On September 8, 2006, not having received requested feedback from
other counsel about the proposed order, Dunaway prepared a motion for approval of a minor
settlement and advised counsel for Grandmother’s estate and Romer that he would appear

3
Mother did not appeal this dismissal.
4
Romer was ultimately paid $2,716 by Grandmother’s liability insurer for services rendered and
deposition expenses incurred as guardian ad litem through the judicial settlement conference. This payment
was separate from the $425,000 settlement.
5
The $141,666.66 amount is equal to one-third of $425,000.

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in Fentress County Circuit Court on September 25, 2006, for court approval of the
settlement.6

By letter dated September 11, 2006, Romer recommended to Dunaway that a hearing
take place on the amount of the attorney’s fee. Dunaway replied to Romer the same day,
maintaining that the amount of the attorney’s fee was outside the scope of Romer’s duties as
guardian ad litem. On September 15, 2006, Romer filed a response to the motion to approve
the minor’s settlement, requesting a hearing to review the proposed order and to determine
a reasonable attorney’s fee for Dunaway.

During the ensuing hearing before Judge McAfee, Romer argued that, under
Tennessee law, a next friend cannot bind a minor by contracting with counsel for attorney’s
fees and that the trial court, when setting a reasonable attorney’s fee in a minor settlement,
should exercise its discretion using the factors set forth in Tennessee Supreme Court Rule
8, Rule of Professional Conduct (“RPC”) 1.5(a)(1)-(10). In response, Dunaway argued that,
because the contingent nature of the fee was “one of the major factors to be considered” and
because he invested “a lot of work” in the case, he should receive the contracted-for
contingency fee. In its ruling from the bench, the court stated that it had “considered” the
RPC 1.5 factors, but made no specific findings as to any of them. The court then found that
Dunaway’s one-third contingency fee was not “unreasonable in any way.” Noting that, if
Kaitlyn could have contracted with an attorney, “more than likely that lawyer would have
charged a third,” the trial court stated that it “fully and firmly support[ed] the free market
approach” and “ha[d] no intentions of interfering with this.”

Accordingly, on September 25, 2006, the trial court entered a judgment approving the
settlement. The trial court awarded Dunaway “contractual attorney fees” of $141,666.66 and
distributed the remaining settlement proceeds as stated in the proposed order that Dunaway
had circulated. On November 9, 2006, the trial court issued supplemental orders concluding
that the $141,666.66 contingency fee on a total recovery of $425,000 was a fair and
reasonable fee and directing the payment of that fee from the settlement proceeds.

Following the entry of the final judgment on January 18, 2007, Romer appealed the
amount of the attorney’s fee.7 The Court of Appeals reversed the fee award, “remanded to
the trial court for a full hearing,” and directed the trial court to consider and make findings

6
Although both the motion and notice were dated September 8, 2006, the motion was file-stamped
on September 21, and the notice on September 13.
7
Prior to the entry of final judgment, Romer filed a motion for permission to file an interlocutory
appeal following the trial court’s September 25, 2006 order, and then moved to amend that motion following
the supplemental orders of November 9, 2006. In its final order, the trial court denied both motions.

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on all the relevant RPC 1.5 factors. Wright ex rel. Wright v. Wright, No. M2007-00378-
COA-R3-CV, 2007 WL 4340871, at *6-7 (Tenn. Ct. App. Dec. 12, 2007) (“First Appeal”).
The intermediate appellate court reaffirmed the legal rule that a next friend representing a
minor cannot bind the minor by a contract with counsel for the amount of attorney’s fees.
Id. at *4. The Court of Appeals concluded that the September 25, 2006 hearing was deficient
because of the absence of proof concerning the time Dunaway spent on the case, lack of
specific findings concerning each of the RPC 1.5(a) factors, and failure to acknowledge that
Dunaway bore the burden of establishing the reasonableness of his fee request. Id. at *6.
The intermediate appellate court concluded that the trial court erred in “believ[ing] that the
contingent fee agreement trumped all the other relevant factors set out in RPC 1.5(a).” Id.

Remand Hearing and Second Appeal of Attorney’s Fee

After the Court of Appeals’ opinion reversing the fee award and remanding to the trial
court, Dunaway filed a motion in Fentress County Circuit Court for approval of his attorney’s
fee.8 He attached an affidavit detailing the time and legal services that he had rendered in
the case. Judge McAfee conducted an evidentiary hearing on April 9, 2008, during which
he heard Dunaway’s testimony and admitted exhibits into evidence.9 Counsel for
Grandmother’s estate did not participate in the hearing or take a position on Dunaway’s fee.
Dunaway’s testimony and the accompanying exhibits establish the following facts.

According to Dunaway’s affidavit, he spent 144.4 hours and advanced $3,031.05 of
expenses10 on Kaitlyn’s behalf; he routinely litigated personal injury cases on a contingent
fee basis of one-third of the recovery; and he handled other litigation on an hourly basis,
charging $400 per hour. Ten hours of work in Kaitlyn’s case were performed by Dunaway’s
associate, Mark Orr, whose rate was $150 per hour in hourly litigation. On cross-
examination by Romer, Dunaway admitted that the affidavit inadvertently contained
duplicate entries for Dunaway’s appearance at the November 29, 2005, hearing on the motion
to dismiss Mother’s personal injury action.11

8
Although Dunaway’s motion and accompanying affidavit were dated March 28, 2008, they were
not stamped “Filed” by the circuit court clerk until April 10, 2008, the day after the trial court heard
Dunaway’s motion.
9
Dunaway was deposed prior to the hearing. However, the deposition transcript was not available
at the time of the hearing, and it is not included in the record on appeal.
10
The record does not explain why this number is $10.05 higher than the amount of expenses
actually paid to Dunaway out of Kaitlyn’s $425,000 settlement.
11
One such entry was for 5.0 hours, and the other entry was for 6.0 hours.

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 Dunaway testified that he had been practicing law for thirty-four years and had cases
pending in sixteen different East Tennessee counties. He testified that he tries the most jury
cases of any attorney in the Eighth Judicial District. Dunaway accepts most cases on an
hourly basis but litigates personal injury cases on a contingent fee basis. When retained by
a client, Dunaway discloses both that his hourly rate is $400 per hour and that he knows of
no other attorney in the district whose hourly rate is as high. The parties stipulated that
attorneys practicing in Fentress County typically charge $150-200 per hour in hourly cases
and charge a one-third contingency fee for representing adult plaintiffs in personal injury
actions.

Dunaway had previously represented Father in his divorce from Mother and in several
other litigation matters over a period of approximately ten years. For Kaitlyn’s case,
Dunaway executed a written contingent fee agreement with Father, who could not have
funded the litigation personally without taking out a loan specifically for that purpose.
Furthermore, Dunaway advanced all expenses to develop the case.

In developing Kaitlyn’s case, Dunaway reviewed, analyzed, and summarized Kaitlyn’s
medical treatments and medical expenses. Dunaway subsequently moved to amend the
complaint to double the demand for damages because Kaitlyn’s injuries were more severe
than he originally realized. While investigating the case, Dunaway concluded that he would
be unable to establish liability against Anita Wright because Kaitlyn had no recollection of
the accident, Grandmother was deceased, and the police investigative report placed fault with
Grandmother. Dunaway determined that the maximum possible insurance recovery was the
$50,000 policy limits of Grandmother’s liability coverage, a sum well below the amount of
damages that Kaitlyn sustained. Accordingly, Dunaway turned to the assets of
Grandmother’s estate, which consisted primarily of real property. Based on his review of the
property and probate records, Dunaway determined that the estate had sufficient assets to
satisfy a substantial judgment.

Dunaway learned that Grandmother’s estate had filed a petition in Fentress County
Chancery Court on April 25, 2006, to obtain court approval for a private sale of the estate’s
property. Concerned that an unsupervised private sale might significantly reduce the assets
of the estate, Dunaway appeared before the chancellor on June 20, 2006, to advise the court
of Kaitlyn’s personal injury action pending against the estate. That same day, the chancellor
entered an order allowing the sale of the property subject to review and supervision by the
court. If the court did not approve the sale, the order directed a public auction, again subject
to court approval. The estate subsequently withdrew its petition to sell the real property and

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ultimately contributed $375,000 to the settlement.12 Dunaway’s affidavit indicates that he
spent 9.9 hours responding to the petition to sell the estate’s real property.

In addition to settling the action against the estate, Dunaway negotiated with BCBS
concerning the amount of its subrogation interest for Kaitlyn’s medical expenses. BCBS
agreed to reduce its $183,814.30 claim down to $62,517.74.13 Father invested the net
recovery of approximately $220,000 in certificates of deposit with an initial negotiated
interest rate of approximately 5.5%.14

Romer submitted an affidavit detailing his expenses, time spent, and services rendered
as guardian ad litem subsequent to the judicial settlement conference. His affidavit reflected
a balance still due of $10,369.62.

The trial court issued its opinion from the bench. The court addressed each of the ten
factors in RPC 1.5. Concerning the first factor—the time and labor required, the novelty and
difficulty of the questions, and the skill required to perform the services properly—the court
acknowledged the “substantial amount of hours” reflected on Dunaway’s affidavit. The
court excluded the time Dunaway spent litigating the Overton County Juvenile Court petition
but included the time spent litigating the Fentress County Chancery Court petition to sell the
assets of Grandmother’s estate. Ultimately, the court did not make a finding as to the exact
number of hours that Dunaway spent on Kaitlyn’s case but observed that, if those hours had
been billed at Dunaway’s hourly rate, the total would “roughly . . . be around a fifty thousand
dollar fee.” From the beginning of the representation, Dunaway “immediately began the

12
This amount, plus the liability insurer’s payment of the $50,000 policy limits, constitutes the sum
of the $425,000 settlement. Pursuant to a September 14, 2006, letter, counsel for Grandmother’s estate
informed Dunaway that the estate would pay the settlements with a bank option rather than through the sale
of properties. The record is unclear whether the insurance company paid the $50,000 into Grandmother’s
estate or directly to Kaitlyn’s representatives.
13
The testimony and exhibits from the April 9, 2008, hearing do not identify the exact amount of
the negotiated subrogation interest. Instead, that amount appears in the September 25, 2006, judgment
approving the settlement. Romer did not appeal the amount of the payment to BCBS.
14
The record also reflects that, on June 3, 2005, shortly after Kaitlyn’s release from the hospital,
Mother filed a petition in Overton County Juvenile Court to have Kaitlyn declared dependent and neglected
by Father. This petition was served on Father the day after he retained Dunaway for the personal injury case.
Dunaway prepared pleadings in response to the petition and ultimately obtained an agreed order of voluntary
dismissal by persuading opposing counsel that the Overton County court had no jurisdiction because,
although Mother lived there, Father and Mother litigated their divorce in Fentress County, where post-
divorce matters were also pending. Dunaway spent 11.2 hours responding to the Overton County Juvenile
Court petition.

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process of preparing this case for trial” by, for example, reviewing and summarizing
Kaitlyn’s medical records. Although other, less experienced lawyers might have settled for
the insurance policy limits, Dunaway determined the value of the case and, by investigating
the assets of Grandmother’s estate, located “deep pockets” to provide a settlement
commensurate with that value. By settling the case, Dunaway avoided the uncertainty of
submitting the case to a jury.

The court concluded that the second factor—the likelihood, if apparent to the client,
that accepting the particular employment would preclude other employment—“may or may
not be a factor.” The court did note Dunaway’s testimony that any work on Kaitlyn’s case
precluded him from other personal injury cases paying a one-third contingency fee or hourly
matters charged at his $400 per hour rate.

Concerning the third factor—the fee customarily charged in the area for similar legal
services—the trial court acknowledged the legal rule that the parties could not bind a juvenile
by a contract for attorney’s fees. However, the trial court also stated it was “important” that
lawyers in Fentress County customarily charge a one-third contingency fee in personal injury
cases.

Concerning the fourth factor—the amount involved and results obtained—the court
concluded the results were “very good” and reflected “good lawyering . . . to get this kind
of money.”

Concerning the fifth factor—the time limitations imposed by the client or
circumstances—the trial court did not find that any such limitations existed.

Concerning the sixth factor—the nature and length of the professional relationship
with the client—the court found that Dunaway had a ten-year professional relationship with
Father and observed that Father “is a professional and an educated person, and obviously
knew what he was doing when he contracted with Mr. Dunaway to represent his daughter.”

Concerning the seventh factor—the lawyer’s experience, reputation, and ability—the
trial court commended Dunaway in all three areas, noting that Dunaway was “especially”
well respected in Fentress County and by the court. The trial court noted Dunaway’s thirty-
four years of experience practicing law and recalled that Dunaway represented “most” of the
plaintiffs in jury trials before the court.

Concerning the eighth factor—whether the fee is fixed or contingent—the court found
that the fee was contingent.

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 Concerning the ninth factor—prior advertisements or statements by the lawyer with
respect to the fee charged—the trial court concluded that it “d[id]n’t think that’s an issue.”
The court did reiterate that Father was “an educated man” and, based on the prior
professional relationship, was “reasonable” to retain Dunaway for Kaitlyn’s case.

Concerning the tenth factor—whether the fee agreement is in writing—the court
found that the agreement was in writing and admitted it into evidence.

After reviewing the ten factors, the trial court ruled that $131,000 was a fair and
reasonable fee for services Dunaway rendered on Kaitlyn’s behalf. The trial court made this
award “based upon the evidence presented . . . , based upon the practice, based upon the
arrangements, based on everything, the totality of the circumstances, [and] based upon the
factors listed.” Accordingly, the court directed Dunaway to reimburse $10,000 from the
original fee award to Father, who would then be required to pay that amount to Romer for
services rendered as guardian ad litem subsequent to the settlement conference. The trial
court memorialized this ruling in a written order filed May 2, 2008, and entered the final
judgment that same day.15

Romer again appealed the amount of the attorney’s fee. This time, the Court of
Appeals affirmed Dunaway’s $131,000 fee award, holding that the trial court did not abuse
its discretion “after its thorough analysis of the applicable factors” from RPC 1.5. Wright ex
rel. Wright v. Wright, No. M2008-01181-COA-R3-CV, 2009 WL 3246459, at *5 (Tenn. Ct.
App. Oct. 8, 2009) (“Second Appeal”). The intermediate appellate court rejected Romer’s
argument that the number of hours times a reasonable hourly rate should be “the
‘predominant factor’ in setting a reasonable fee.” Id. at *3.

Romer then sought this appeal, challenging the reasonableness of Dunaway’s
$131,000 fee and asking the Court to modify the application of RPC 1.5(a) for determining
attorney’s fees in cases involving minors.16

15
Out of the original fee award of $141,666.66, the trial court provided no direction concerning the
proper disposition of the $666.66 left over after the payment of Dunaway’s $131,000 fee and reimbursement
of $10,000 to Father, who would then pay Romer’s guardian ad litem fee.
16
In the Second Appeal, the Court of Appeals remanded to the trial court to address Romer’s request
for attorney’s fees and expenses incurred in that appeal. Wright, 2009 WL 3246459, at *6. In his brief to
this Court, while asking us not to disturb the $10,000 award for fees and expenses in the First Appeal, Romer
voluntarily waives the reimbursement for his fees and expenses in the Second Appeal and the appeal to this
Court.

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 STANDARD OF REVIEW

The trial court’s determination of a reasonable attorney’s fee is “a subjective judgment
based on evidence and the experience of the trier of facts,” United Med. Corp. of Tenn., Inc.
v. Hohenwald Bank & Trust Co., 703 S.W.2d 133, 137 (Tenn. 1986), and Tennessee has “no
fixed mathematical rule” for determining what a reasonable fee is. Killingsworth v. Ted
Russell Ford, Inc., 104 S.W.3d 530, 534 (Tenn. Ct. App. 2002). Accordingly, a
determination of attorney’s fees is within the discretion of the trial court and will be upheld
unless the trial court abuses its discretion. Kline v. Eyrich, 69 S.W.3d 197, 203 (Tenn.
2002); Shamblin v. Sylvester, 304 S.W.3d 320, 331 (Tenn. Ct. App. 2009). We presume that
the trial court’s discretionary decision is correct, and we consider the evidence in the light
most favorable to the decision. Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010);
Keisling v. Keisling, 196 S.W.3d 703, 726 (Tenn. Ct. App. 2005). The abuse of discretion
standard does not allow the appellate court to substitute its judgment for that of the trial
court, Williams v. Baptist Mem’l Hosp., 193 S.W.3d 545, 551 (Tenn. 2006); Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998), and we will find an abuse of discretion
only if the court “applied incorrect legal standards, reached an illogical conclusion, based its
decision on a clearly erroneous assessment of the evidence, or employ[ed] reasoning that
causes an injustice to the complaining party.” Konvalinka v. Chattanooga-Hamilton Cnty.
Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008); see also Lee Med., Inc. v. Beecher, 312
S.W.3d 515, 524 (Tenn. 2010).

ANALYSIS

This case presents a question of first impression: how trial courts should determine
a “reasonable” attorney’s fee when the attorney represents a minor. We begin by discussing
a question we have addressed frequently: how the trial court would determine a “reasonable”
attorney’s fee if Kaitlyn were an adult.

Currently and at the time relevant to this litigation, this issue is governed by RPC 1.5,
which specifically addresses attorney fees. It provides:

(a) A lawyer’s fee and charges for expenses shall be reasonable. The
factors to be considered in determining the reasonableness of a fee include the
following:
(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) The likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;

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 (3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the
client;
(7) The experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) Whether the fee is fixed or contingent;
(9) Prior advertisements or statements by the lawyer with respect to the
fees the lawyer charges; and
(10) Whether the fee agreement is in writing.

Tenn. Sup. Ct. R. 8, RPC 1.5.17 While this Court has not reviewed the reasonableness of an
attorney’s fee since the adoption of RPC 1.5, these are neither new nor novel considerations
in the determination of a reasonable attorney’s fee. Most recently, Tennessee’s Disciplinary
Rule (“DR”) 2-106(B) set forth the following eight factors as guides in determining the
reasonableness of a fee:

(1) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the
client.
(7) The experience, reputation, and ability of the lawyer or lawyers
performing the services.
(8) Whether the fee is fixed or contingent.

Tenn. Sup. Ct. R. 8, DR 2-106(B) (2002); see also Connors v. Connors, 594 S.W.2d 672,
676-77 (Tenn. 1980). While acknowledging the importance of factors specified in a code

17
Effective January 1, 2011, we amended RPC 1.5. This amendment added preliminary language
prohibiting any agreement, charge, or collection of an unreasonable fee or expense amount, but the factors
for determining a reasonable fee listed in subpart (a)(1)-(10) remained the same. The amendment also added
a comment clarifying that the stated factors are not exclusive and each factor may not be relevant in every
case. Another new comment explained that contingent fees are, like any other fee, subject to the
reasonableness standard of RPC 1.5(a), based upon consideration of the relevant factors.

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of ethics, this Court has also cautioned that “ultimately the reasonableness of the fee must
depend upon the particular circumstances of the individual case.” White v. McBride, 937
S.W.2d 796, 800 (Tenn. 1996) (citing Hail v. Nashville Trust Co., 212 S.W.2d 51 (Tenn. Ct.
App. 1948)).

Our Court of Appeals has consistently maintained that the factors governing the
determination of a “reasonable” attorney’s fee in cases involving minors are the same as in
cases involving adults. See Shoughrue v. St. Mary’s Med. Ctr., 152 S.W.3d 577, 585-86
(Tenn. Ct. App. 2004) (explaining that trial court applied the correct legal standard by
implicitly considering the RPC 1.5 factors); Hail, 212 S.W.2d at 56 (considering a set of
factors similar to those ultimately codified in RPC 1.5). And, a survey of case law from other
jurisdictions indicates that many courts have used the same multi-factor analysis to determine
a reasonable fee, whether the case involves a minor or an adult. E.g., Pellegrin v. Nat’l
Union Fire Ins. Co. of Pittsburgh (In re Abrams & Abrams, P.A.), 605 F.3d 238, 244 (4th
Cir. 2010); Green v. Nevers, 111 F.3d 1295, 1299, 1303 (6th Cir. 1997); Hoffert v. Gen.
Motors Corp., 656 F.2d 161, 166 (5th Cir. Unit A Sept. 1981); Holbrook v. Andersen Corp.,
756 F. Supp. 34, 38 & n.7 (D. Me. 1991); Donnarumma v. Barracuda Tanker Corp., 79
F.R.D. 455, 461-62 (C.D. Cal. 1978); Madison Cnty. Dep’t of Human Res. v. T.S. ex rel.
F.M., 53 So. 3d 38, 54 (Ala. 2010) (opinion on return to second remand); Roos v. Hirsch (In
re Conservatorship of Fallers), 889 P.2d 20, 22 (Ariz. Ct. App. 1994); Padilla v. McClellan,
113 Cal. Rptr. 2d 680, 685 (Ct. App. 2001); Iskander v. Columbia Cement Co., 469 A.2d
103, 106, 108-09 (N.J. Super. Ct. Law Div. 1983), aff’d, 484 A.2d 353 (N.J. Super. Ct. App.
Div. 1984); In re Settlements of Betts, 587 N.E.2d 997, 1002-03 (Ohio Ct. Com. Pl. 1991);
Sneed v. Sneed, 681 P.2d 754, 756-57 (Okla. 1984); In re Trust Estate of LaRocca, 246 A.2d
337, 339 (Pa. 1968); Int’l Dairy Queen, Inc. v. Matthews, 126 S.W.3d 629, 631-32 (Tex.
App. 2004); In re Settlement/Guardianship of AGM & LLM, 223 P.3d 1276, 1283-84 (Wash.
Ct. App. 2010); Statler v. Dodson, 466 S.E.2d 497, 505-06 (W. Va. 1995).18 Many of these
jurisdictions, like Tennessee, have a rule of professional conduct based on the corresponding
provision in the ABA’s Model Rules, while others have developed their tests under the
common law. Although all jurisdictions do not use precisely the same factors to compute a
reasonable fee, each jurisdiction cited here considers at least some of the factors found in our
RPC 1.5, and considers those factors whether the attorney represents a minor or an adult.

Nevertheless, the courts in Tennessee and in these other jurisdictions also assume a
special responsibility to protect a minor’s interests. See, e.g., Nashville Trust Co. v. Lebeck,

18
Each of these cases discusses the computation of attorney’s fees in cases involving a minor. The
fact that the reasonable fee analysis remains the same in cases involving adults is implied from the citation
to a court rule or rule of professional conduct of general application, or to another case using the same
analysis to compute a reasonable fee in a case without any minors.

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270 S.W.2d 470, 475 (Tenn. 1954), abrogated on other grounds by Cracker Barrel Old
Country Store, Inc. v. Epperson, 284 S.W.3d 303 (Tenn. 2009); Wilson v. Mullen, 11 Tenn.
App. 319, 336 (1930); cf. Tuetken v. Tuetken, 320 S.W.3d 262, 271 (Tenn. 2010)
(explaining, in the child custody context, that “Tennessee statutes . . . impose a duty on trial
courts to protect the best interests of children”); see also Sneed, 681 P.2d at 756 (“Cases
involving minors impose a duty upon the trial court to protect the child’s interest.”);
Settlement/Guardianship of AGM, 223 P.3d at 1283 (describing special procedures for trial
court’s exercise of discretion over attorney fees in settlements on a minor’s behalf). As one
federal court has explained, where the plaintiffs pay the attorney’s fee out of their recovery:

[t]he Court has a responsibility in such a case to oversee the fairness of the fee
in a more general sense. This is especially true when the plaintiffs are minors
and are hence in no position to judge for themselves the value of the services
rendered by their attorneys or to protect fully their own interests and needs in
the division of a settlement award negotiated on their behalf. . . . These
concerns also require the court to give special scrutiny to the claim for attorney
fees. In this situation, the Court must consider not only the fair value of the
services rendered by plaintiffs’ counsel, but also the needs, both present and
future, of the [minor] plaintiffs who are the Court’s special responsibility.

Friends for All Children, Inc. v. Lockheed Aircraft Corp., 567 F. Supp. 790, 812-13 (D.D.C.
1983) (internal citations omitted). Indeed, Tennessee has legislation pertinent to this issue:

In any action, claim or suit in which a minor . . . is a party or in any case
of personal injury to a minor . . . caused by the alleged wrongful act of another,
the court in which the action, claim, or suit is pending . . . has the power to
approve and confirm a compromise of the matters in controversy on behalf of
the minor . . . . If the court deems the compromise to be in the best interest of
the minor . . . , any order or decree approving and confirming the compromise
shall be binding on the minor . . . .

Tenn. Code Ann. § 34-1-121(b) (2007); see also id. § 29-34-105(a) (Supp. 2010) (requiring
a chambers hearing attended by minor and legal guardian for any tort claim settlement
involving a minor that exceeds $10,000). As part of the settlement approval process, the trial
court also determines the amount of fees for the attorney representing the minor plaintiff.
See Shoughrue, 152 S.W.3d at 585.

While we reaffirm the longstanding rule in Tennessee that a next friend representing
a minor cannot contract with an attorney for the amount of the attorney’s fee so as to bind
the minor, City of Nashville v. Williams, 82 S.W.2d 541, 541 (Tenn. 1935) (citing Roberts

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v. Vaughn, 219 S.W. 1034, 1036 (Tenn. 1920)); Shoughrue, 152 S.W.3d at 585, we also
recognize that the attorney is still entitled to a “reasonable” fee. Williams, 82 S.W.2d at 541;
Shoughrue, 152 S.W.3d at 585. We consider, therefore, whether a trial court should add to
or adjust its analysis of the factors set forth in RPC 1.5 when determining the reasonableness
of an attorney’s fee earned in conjunction with representing the interests of a minor.

Lodestar

Romer argues that we should make the time and labor required in conjunction with
the representation the “bedrock” of the reasonable fee analysis. Cf. Donnarumma, 79 F.R.D.
at 465-66; T.S. ex rel. F.M., 53 So. 3d at 54; Settlements of Betts, 587 N.E.2d at 1002.
Specifically, Romer directs our attention to the “lodestar” method for computing a reasonable
attorney’s fee. In the lodestar calculation, the court multiplies the number of hours that the
attorney has reasonably expended on the case times a reasonable or customary hourly rate.
United Med. Corp., 703 S.W.2d at 137; Settlement/Guardianship of AGM, 223 P.3d at 1286
n.16. In its discretion, the court may make some adjustment, usually as a percentage of the
hourly rate, to reflect other factors such as those found in our RPC 1.5(a), including the
contingent nature of success, the quality of the attorney’s work, and the results obtained. Id.;
cf. Friends for All Children, 567 F. Supp. at 809. As an example, Romer cites the practice
in Washington State, where courts first conduct a multi-factor analysis much like our RPC
1.5(a) to determine whether a requested fee is reasonable and then, if the requested fee is
unreasonable, use the lodestar to compute a reasonable fee. See Settlement/Guardianship of
AGM, 223 P.3d at 1286 & n.16.

In United Medical Corp., this Court refused to adopt the lodestar approach in the
context of determining a reasonable attorney’s fee in a collection action. 703 S.W.2d at 137.
We reasoned that the existing multi-factor analysis under DR 2-106 already included the
“time expended and the customary hourly charges in the locality.”19 Id.; cf. Tenn. Sup. Ct.
R. 8, RPC 1.5(a)(1) & (3). Acknowledging this Court’s previous rejection of the lodestar
approach, Romer asks us to reconsider in cases involving minors.

Relying on the lodestar calculation alone to determine a reasonable attorney’s fee is
problematic, however. The Supreme Court of Oklahoma has ably explained the flaw with
making the number of hours the predominant consideration in computing a reasonable

19
But see McDonnell Dyer, P.L.C. v. Select-O-Hits, Inc., No. W2000-00044-COA-R3-CV, 2001 WL
400386, at *7 (Tenn. Ct. App. Apr. 20, 2001). Citing a Court of Appeals case decided shortly after United
Medical Corp., this unpublished opinion stated that “Tennessee courts . . . traditionally determine[] the
reasonable value of an attorney’s services by considering the number of hours billed and the lawyer’s
customary hourly rate.” Id.

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attorney’s fee: “[t]he time and energy expended in the performance of client services are
essential elements which must be considered in setting reasonable fees—but, if time is the
singular calculation, inexperience, inefficiency, and incompetence may be rewarded while
skillful and expeditious disposition of litigation is penalized unfairly.” Adams v.
Unterkircher, 714 P.2d 193, 197 (Okla. 1985); see also Settlements of Betts, 587 N.E.2d at
1004 (reasoning that an experienced and skilled attorney can accomplish tasks in shorter
amount of time). The ability to achieve such a “skillful and expeditious disposition of
litigation” with fewer hours may, in fact, produce a greater recovery for the client.

Furthermore, as the Amicus Curiae explains, adopting the lodestar to determine the
attorney’s fee in cases involving a minor may result in a greater recovery for Kaitlyn in this
case, but there is no guarantee that it would bring a greater recovery for other minors in
future cases. To the contrary, adopting the lodestar may instead create pressure to accept low
settlement offers early in the case, regardless of whether early settlement is in the minor’s
best interests. That way, the minor’s next friend minimizes the risk of attorney’s fees
accumulating during the litigation and consuming whatever greater recovery the minor might
obtain by holding out for a later, higher recovery. Also, tying the amount of the fee award
so closely to the number of hours spent on the case may perversely incentivize working
additional hours on a case for the purpose of obtaining a higher fee. In any event, the
lodestar has the potential to lead to lower total and net recoveries for minors, a result
inconsistent with the courts’ duty to protect their best interests.

Ultimately, we decline to require that trial courts rely solely or even primarily on the
lodestar computation in determining a reasonable attorney’s fee involving minors. As we
reasoned in United Medical Corp., our existing multi-factor analysis already includes the
time and labor involved in the case and the fee customarily charged in the locality.20 703
S.W.2d at 137. We decline to make those factors the paramount or exclusive considerations
because RPC 1.5(a) articulates a number of other factors that are also important to
determining a reasonable attorney’s fee. Regardless of the approach used, “the determination
of what constitutes a reasonable fee is still a subjective judgment based on evidence and the
experience of the trier of facts,” id., and “the reasonableness of the fee must depend upon the
particular circumstances of the individual case.” White, 937 S.W.2d at 800. We disagree that
emphasizing the lodestar will cause trial courts to exercise that case-by-case discretion more
effectively when minors are involved.

20
Since the United Medical Corp. decision in 1986, we added the lawyer’s prior communications
regarding fees charged, another factor potentially relevant to determining the reasonable hourly rate in a
particular case. See Tenn. Sup. Ct. R. 8, RPC 1.5(a)(9).

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 Our decision should not be construed as diminishing the significance of the attorney’s
time and labor in determining a reasonable attorney’s fee. We anticipate that the attorney’s
time and labor will always be relevant in cases where the court is asked to determine a
reasonable fee.21 As the Court of Appeals observed in the First Appeal, a record of an
attorney’s fee award contains a “striking void” if there is no “precise information as to the
amount of time spent on the case” by the attorney requesting a fee. See Wright, 2007 WL
4340871, at *6 & n.6. An affidavit such as the one that Dunaway submitted for the remand
hearing in this case—which detailed how much time he spent on the case, what work he
accomplished during that time, and when he spent that time—helps the trial court analyze
several factors relevant to the determination of a reasonable attorney’s fee. It not only
provides the amount of time and labor that the case required, but also is useful for assessing
the difficulty of the questions presented, the skills required, and the time constraints that the
attorney faced. Accordingly, an attorney representing a minor should keep a record of time
spent on the minor’s case, even if that attorney does not ordinarily keep track of time as part
of the attorney’s practice.22

Percentage Cap

Romer also asks us to consider imposing a percentage cap on the attorney’s recovery
in cases involving the representation of a minor. Romer points out that Tennessee imposes
percentage caps on attorney’s fees in medical malpractice actions,23 see Tenn. Code Ann. §

21
By contrast, some factors will, perhaps, not be relevant in all cases. In the present case, for
example, the trial court found that “time limitations imposed by the client or by the circumstances” were not
applicable to the fee determination because the evidence indicated that no such time limitations existed.
22
Knowing the number of hours spent on the case also enables the court, in its discretion, to cross-
check the reasonableness of a fee by computing the effective hourly rate. For example, in White, we
affirmed the lower courts’ refusal to enforce a one-third contingency agreement where recovery under the
contract would have compensated the attorney at an hourly rate more than six times as high as, and thus
“grossly in excess of . . . the upper end of ‘the fee customarily charged in the locality for similar services.’”
937 S.W.2d at 801 (quoting Tenn. Sup. Ct. R. 8, DR 2-106(B)(3)).

We do not mandate that trial courts compute the effective hourly rate in every case (just as we hold
that trial courts are not required to use the lodestar). We simply point out that the effective hourly rate
computation may be a useful tool for a trial court determining a reasonable fee in the particular circumstances
of an individual case. Most importantly, whether or not trial courts use this tool, the attorney seeking a fee
needs to keep a record of the time spent on the case so the trial court can consider the time and labor required
to determine what is a reasonable fee.
23
Where the plaintiff in a medical malpractice action has contracted with an attorney on a
contingency fee basis, the court will grant a fee no greater than one-third of the damages awarded to the
(continued...)

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29-26-120 (2000), and workers’ compensation cases,24 see id. § 50-6-226 (2008). Federal
law likewise imposes fee caps in Social Security cases.25 See 42 U.S.C. §§ 406(a)(2)(A),
1383(d)(2)(A) (2003 & Supp. 2010).

Other states impose caps on fees more broadly. For example, in New Jersey, the
attorney’s fee in tort actions is controlled by a graduated scale tied to the amount of the
recovery. See N.J. R. Ct. 1:21-7(c). Similarly, for contingency fees in tort cases, Florida has
imposed a graduated scale tied to both the amount of the recovery and the stage at which the
case is resolved. R. Regulating Fla. Bar 4-1.5(f)(4)(B)(i). The language of the Florida rule
does not distinguish between cases involving adults and cases involving minors.26

If we were to follow these jurisdictions and specify a percentage of what an attorney
could recover in a case involving a minor, we would depart from our existing law that
“ultimately the reasonableness of the fee must depend upon the particular circumstances of
the individual case.” White, 937 S.W.2d at 800. Prescribing a fee structure would tend to
result in similar fees being awarded in cases with different factual and procedural histories.27
Cf. McCombs v. N.J. State Police, 576 A.2d 349, 351 (N.J. Super. Ct. Law Div. 1990)
(explaining that difficulty of establishing liability and quality of legal services rendered are

23
(...continued)
plaintiff. Tenn. Code Ann. § 29-26-120. In determining the fee, the court considers the time and effort the
attorney devoted to the litigation, the complexity of the claim, “and other pertinent matters.” Id.
24
In workers’ compensation proceedings, attorney’s fees for counsel representing employees cannot
exceed twenty percent of the amount of the claimant’s award, excluding medical costs voluntarily paid by
the employer or its insurer. Tenn. Code Ann. § 50-6-226(a)(1), (2)(A). In a case proceeding to trial, the
employee’s attorney must apply for approval of a proposed attorney’s fee, and any award exceeding $10,000
requires court findings concerning the RPC 1.5 factors that justify the fee. Id. § 50-6-226(a)(2)(C).
25
An attorney who obtains a favorable determination of past-due benefits for a claimant may recover
the lesser of twenty-five percent of the past-due benefits or $6,000. See 42 U.S.C. § 406(a)(2)(A); cf.
Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080, 6080 (Feb. 4, 2009) (increasing
the maximum dollar amount for fee agreements to $6,000). Essentially the same scale is also implemented
in 42 U.S.C. § 1383(d)(2).
26
Pursuant to their inherent power to protect minors, however, Florida courts have the discretion not
to bind a minor to a contract for legal services. See Wilson v. Griffiths, 811 So. 2d 709, 713 (Fla. Dist. Ct.
App. 2002).
27
If most cases resulted in courts awarding fees equal to the percentage cap, this pattern would run
contrary to the principle that the percentage recovery should be lower as the amount of the recovery
increases. See Werner v. Levine, 276 N.Y.S.2d 269, 272 (Sup. Ct. 1967); Abel v. Tisdale, 619 P.2d 608, 612
(Okla. 1980).

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not relevant to whether the New Jersey fee cap applies). We are also not persuaded by
Romer’s argument that, because minors are innocent and vulnerable, they are similarly
situated to disabled Social Security claimants and injured workers and, thus, deserve similar
rules governing attorney’s fees. Such an analogy overlooks the reality that the fee caps in
our workers’ compensation law and the federal Social Security law resulted from legislative
enactment, rather than the exercise of judicial discretion based on ethical guidelines. In the
absence of legislation creating such a fee schedule, we decline to develop our own and
further decline the invitation to add a percentage cap or guideline to the factors listed in RPC
1.5(a).28

Contingency Fee

In contrast to Romer, the Amicus Curiae urges us to place great weight on the risks
inherent in a contingency fee agreement, arguing that such fee agreements should be
enforced when negotiated on behalf of a minor where the same fee would be anticipated were
the plaintiff an adult. We recognize, of course, that contingency arrangements allow clients
who cannot “pay a reasonable fixed fee to obtain competent representation.” Alexander v.
Inman, 903 S.W.2d 686, 696 (Tenn. Ct. App. 1995). Furthermore, unlike hourly billing,
contingency fee arrangements shift to the attorney some or all of the risk that the client’s
claim will result in no recovery. Id.

In the context of cases involving minors, however, a proposal to enforce a contingency
fee agreement automatically is contrary to law. In this state a next friend representing a
minor cannot contract with an attorney for the amount of the attorney’s fee so as to bind the
minor. Williams, 82 S.W.2d at 541; Shoughrue, 152 S.W.3d at 585. Therefore, the trial
court should not place weight on the nature of the fee agreement and instead should review
the case on the premise that there is no enforceable fee contract. In other words, the proper

28
In addition to the percentage cap in New Jersey, Romer also directs our attention to Rule 71(I) of
the Rules of Superintendence for the Courts of Ohio, which states:

Prior to a fiduciary entering into a contingent fee contract with an attorney for
services, an application for authority to enter into the fee contract shall be filed with the
court, unless otherwise ordered by local court rule. The contingent fee on the amount
obtained shall be subject to approval by the court.

Romer suggests this contract pre-approval procedure might be of some advantage in Tennessee, if courts
were to enforce it strictly. That procedure is contrary to our law, however, because a next friend cannot bind
a minor to a contract for the payment of attorney’s fees. Williams, 82 S.W.2d at 541; Shoughrue, 152
S.W.3d at 585. We need not consider the Ohio rule further.

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question is not whether the contract amount is reasonable but rather what the reasonable fee
would be in the absence of a contract.

Nonetheless, other factors in RPC 1.5(a) require the trial court to take into account the
risks that an attorney must consider before deciding whether to accept representation in a
case where the compensation will remain uncertain until the end of the case. “[T]he fee
customarily charged in the locality for similar legal services” allows the trial court to
consider, for example, that attorneys in a particular area typically accept personal injury
actions on a contingent basis. See Tenn. Sup. Ct. R. 8, RPC 1.5(a)(3). The trial court may
further consider that, in actions that attorneys accept on contingency, the fee should
ordinarily be greater than in cases where the fee is fixed. See United Med. Corp., 703
S.W.2d at 136; Killingsworth, 104 S.W.3d at 534; accord Pellegrin, 605 F.3d at 246; Ex parte
Peck, 572 So. 2d 427, 429 (Ala. 1990); Settlements of Betts, 687 N.E.2d at 1005. The trial
court will also consider the novelty and difficulty of the questions and the skill required to
perform the legal services. See Tenn. Sup. Ct. R. 8, RPC 1.5(a)(1). These considerations
reflect what some other jurisdictions have described as the “risk of non-recovery” in
determining a reasonable fee. See, e.g., Donnarumma, 79 F.R.D. at 467-69; T.S. ex rel.
F.M., 53 So. 3d at 58; Settlements of Betts, 587 N.E.2d at 1002-03; Sneed, 681 P.2d at 757.
Indeed, if the court did not consider such risk, then the analysis in such cases would likely
result in unreasonably low fee awards that might soon dissuade attorneys from accepting the
representation of minors.

The extent to which a court awards a greater fee because of the risk of non-recovery
depends, however, on the facts of the individual case. Some cases present a greater or lesser
risk of non-recovery than others, and a court should determine a reasonable fee based on the
actual level of risk. For instance, in Pellegrin, the Fourth Circuit Court of Appeals vacated
the trial court’s reduction of the attorneys’ compensation from one-third of an $18 million
settlement down to three percent in a case involving a plaintiff severely and permanently
brain-damaged after being struck by a vehicle.29 605 F.3d at 248-49. The court remanded
for “a more rigorous analysis” of a list of twelve factors, including many found in our RPC
1.5(a), because the trial court had “reduced counsel’s fee to a level that few attorneys would
have accepted at the outset of litigation, when success was by no means assured and the size
of any settlement or judgment was unpredictable.” Id. at 246, 249. The court identified “a
number of sticky problems” when the plaintiff’s counsel took the case: the reservation of
rights and refusal to defend by the defendant’s insurer; the prospect of obtaining a verdict
against a judgment-proof defendant; the possibility of a contributory negligence defense

29
Although the plaintiff was an adult at the time of the injury, the Fourth Circuit’s discussion of the
applicable legal standard makes clear that it would apply the same principles whether the case involved a
minor or an incompetent. See Pellegrin, 605 F.3d at 243.

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completely barring recovery; and, because the plaintiff and defendant were co-workers, the
risk that the suit would be transformed into an exclusive workers’ compensation claim. Id.
at 246-47. The Fourth Circuit reasoned that the trial court overemphasized the fact that the
insurer ultimately settled the case for a large amount:

By the time mediation and settlement occurred, the case may well have
appeared open and shut, but that was only because [plaintiff’s] attorneys had
spent almost two years laying the groundwork to secure their client’s interests.
. . . Successful outcomes often make risks seem less risky in hindsight than
they were at the time, and the court should not have ignored those risks merely
because at some later point in litigation the defendant found it in its interest to
settle.

Id. at 248 (emphasis added).

Where the risk of non-recovery is relatively low, however, courts may reach a
different result, particularly where the best interests of minors are at stake. For instance, in
T.S. ex rel. F.M., where the attorney represented a disabled minor severely burned in a
whirlpool bath at a group home, the Alabama Supreme Court held that the trial court
exceeded its discretion by awarding the attorney an unreasonably large one-third share of the
minor’s $737,000 recovery. 53 So. 3d at 59 & n.6. The court reasoned that the risk of non-
recovery in the case was “negligible” because the case presented “compelling facts” and
there was “limited” uncertainty regarding liability. Id. at 58. Within days of being served
with the complaint, the group home’s counsel contacted the attorney to propose a quick
settlement through mediation. Id. at 58-59. The minor’s attorney was already aware of the
available insurance policy limits and did not have to undertake particularly thorough
discovery. Id. at 59. Accordingly, although an attorney of comparable skill and experience
in that locality would generally charge a forty percent contingency fee, the court reduced the
fee award to twenty percent of the minor’s recovery. Id. at 47, 59.

Likewise, in Settlements of Betts, where the attorneys settled an action on behalf of
two minors struck by a drunk driver, the court of common pleas rejected counsel’s request
for one-third of the recovery and instead determined that one-fifth of each child’s settlement
was a reasonable fee. 587 N.E.2d at 1002, 1005. The court reasoned “there never was any
risk . . . of a non-recovery” because counsel was able to obtain a policy limits recovery by
submitting a demand letter to the insurer. Id. at 1004. Furthermore, because the policy limits
were adequate to satisfy the injured minors’ claims, counsel did not try to locate other

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tortfeasors.30 Id. Taken together, these cases establish that the trial court must consider the
actual risks present in a given case before deciding whether and how much more or less an
attorney should receive in a case where a contingent fee would customarily be charged.

Accordingly, we hold that a trial court should apply the factors set forth in RPC
1.5(a)(1)-(10) when determining a reasonable attorney’s fee regardless of the client’s age.
However, where the client is a minor, the trial court should also bear in mind its special
responsibility to protect minors’ rights and best interests. Therefore, the trial court shall not
consider the fee agreement between the attorney and the minor’s next friend, because any
such agreement does not bind the minor. In determining the fee, attorneys representing
minors must, on the one hand, receive sufficiently reasonable fees to ensure that they have
the necessary incentive to accept such cases in the future. See Friends for All Children, 567
F. Supp. at 816; cf. Leonard C. Arnold, Ltd. v. N. Trust Co., 506 N.E.2d 1279, 1281 (Ill.
1987) (explaining that “the court’s duty to protect minors is consistent with the policy of
promoting access to the courts through reasonable” fee awards).

On the other hand, minors are in no position to judge the value of legal services
rendered on their behalf. Any award of attorney’s fees necessarily depletes funds paid for
the benefit of the minor, who depends on the net recovery to compensate for injuries that
often have long-term consequences. See Donnarumma, 79 F.R.D. at 459; cf. Settlements of
Betts, 587 N.E.2d at 999 (describing ongoing physical limitations of minor victims who were
struck by a vehicle); Settlement/Guardianship of AGM, 223 P.3d at 1279 (discussing
guardian ad litem’s opinion that settlement net the requested attorney’s fee would be
insufficient to compensate the minor for her injuries). Therefore, the trial court should have
regard for the minor’s present and future needs when it rigorously analyzes the RPC 1.5
factors in a particular case. The experience of our Court of Appeals and courts in other
jurisdictions establishes that the factors currently set forth in the rule are sufficient for courts
to protect the best interests of minors.31

30
In White, this Court relied on similar principles to affirm the lower courts’ refusal to enforce an
attorney’s one-third contingency agreement in a probate action to recover the client’s share from the estate
of the client’s estranged wife. 937 S.W.2d at 801. While White did not involve a minor and the attorney
ultimately received no fee because of an ethical violation, its reasoning illustrates the problem with not
considering the specific risks in a given case. This Court explained that the case was neither “terribly
complicated or novel” nor required particular skill. Id. Furthermore, the attorney lacked particular expertise
in the subject matter and was not precluded from undertaking other employment. Id. Finally, this Court
concluded that the attorney did not achieve a good result, as the client died without receiving anything from
his estranged wife’s estate. Id. Because the one-third fee was so “clearly excessive” that the attempt to
collect it amounted to a violation of DR 2-106, the lower courts’ fee award was reversed. Id. at 803.
31
Applying this holding, the Court of Appeals’ ruling in the First Appeal was correct. The trial court
(continued...)

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 In terms of procedure, the trial court should develop an evidentiary record, make
findings concerning each of the factors, and then determine a reasonable fee that “depend[s]
upon the particular circumstances of the individual case.” White, 937 S.W.2d at 800. To
enable appellate review, trial courts should clearly and thoroughly explain the particular
circumstances and factors supporting their determination of a reasonable fee in a given case.
See Hoffert, 656 F.2d at 166 (finding no abuse of discretion in fee award to attorney
representing minor tort victim where trial court considered each of the DR 2-106 factors and
provided factual findings, “fully supported by the record,” that were “sufficiently detailed
to permit appellate review”); Ex parte Peck, 572 So. 2d at 429 (“A reviewing court must be
able to ascertain from the record what factors the trial court considered in awarding the
attorney fee.”).

Our holding is in no way intended to dissuade a minor’s next friend from obtaining
legal services on the minor’s behalf. The attorney and next friend should simply recognize
that the court will disregard any agreement concerning fees and set a reasonable fee at the
conclusion of the case. In this case, Dunaway’s agreement with Father contained a provision
acknowledging that the court would determine the fee if a claim was made on an infant’s
behalf and where law required. Given Tennessee law, this provision is particularly
appropriate in any agreement between a next friend and an attorney for legal services on a
minor’s behalf.

In summary, we hold that no single factor found within RPC 1.5 merits special
emphasis over the other factors in determining a reasonable fee in cases involving a minor,
and we decline to add other factors. Instead, the trial court may conclude that certain factors
merit greater weight under the unique circumstances of a particular case. Here, in relying on
the RPC 1.5 factors to determine a reasonable fee, the trial court applied the correct legal
standard. That leaves us only to consider whether the trial court’s fee award was illogical,
based on a clearly erroneous assessment of the evidence, or an injustice to Kaitlyn.

Whether the Decision Was Illogical, Clearly Erroneous, or an Injustice

After conducting the hearing upon remand following the First Appeal, the trial court
determined that $131,000 would be a fair and reasonable fee for the legal services that
Dunaway rendered on Kaitlyn’s behalf. As Romer points out, the trial court’s fee award

31
(...continued)
indeed erred in concluding that Father’s one-third contingent fee agreement with Dunaway was the primary
factor dictating the fee award in this case. That fee agreement did not bind Kaitlyn. Williams, 82 S.W.2d
at 541; Shoughrue, 152 S.W.3d at 585.

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compensates Dunaway at an effective rate of $1,021.84 per hour.32 The effective hourly rate
is more than five times greater than the rate of $200 per hour typically charged in Fentress
County and thus borders on an amount this Court has deemed “clearly excessive” in the
context of a fee award involving an adult plaintiff. See White, 937 S.W.2d at 801 (noting
that fee contract, if enforced, would compensate attorney at more than six times the upper
end of the hourly fee customarily charged in the locality). This large number gives us pause,
and we must determine whether awarding such a large fee is, under the particular
circumstances of this case, illogical, clearly erroneous, or an injustice to Kaitlyn.

The record indicates that Dunaway’s legal services are in high demand in the locality
where he practices, and he is able to command above-market rates for those services. The
trial court agreed that Dunaway tries the most jury cases of any plaintiff’s attorney in the
Eighth Judicial District. In hourly litigation, Dunaway charges $400 per hour, at least double
the typical rate in Fentress County. To Dunaway’s knowledge, at the time of the remand
hearing, no other attorney in the entire Eighth Judicial District charged an hourly rate that
high. While the parties stipulated that Fentress County attorneys customarily accept personal
injury cases on a contingency basis, and while an attorney’s fee is usually higher in a
contingency case, see United Med. Corp., 703 S.W.2d at 136; Killingsworth, 104 S.W.3d at
534, the trial court’s fee award compensates Dunaway at an effective hourly rate more than
two-and-a-half times his usual, uniquely high fee.

In analyzing whether the trial court abused its discretion in awarding the $131,000 fee,
we return to the result Dunaway obtained in this case. As the trial court found, Dunaway
obtained a greater recovery from Grandmother’s estate than if he had merely settled the case
for policy limits. To be precise, the $425,000 settlement is eight-and-a-half times greater
than the $50,000 limits of Grandmother’s liability insurance policy. Furthermore, the
attorney’s fee awarded to Dunaway at the remand hearing is less than thirty-five percent of
the $375,000 difference between the settlement obtained at mediation and the insurance
policy limits. In addition to obtaining the settlement, Dunaway negotiated to reduce BCBS’s
subrogation interest to a little more than a third of the original amount. Even after deducting
expenses and fees from the settlement (including the fee award at issue here), Kaitlyn’s net
recovery is approximately four-and-a-half times the limits of Grandmother’s liability policy.
The trial court found that, because of the “very good” result that Dunaway obtained, Kaitlyn

32
To compute this figure, the attorney’s fee award of $131,000 is divided by 128.2 hours. The
parties agree that 128.2 hours is the correct number of hours if one excludes the duplicate entry on
Dunaway’s affidavit and the hours spent litigating the Overton County Juvenile Court petition, but includes
the hours spent litigating the Fentress County Chancery Court petition. We agree with the Court of Appeals’
conclusions in the Second Appeal that the trial court did not err in deciding which hours to exclude or
include in determining the fee. See Wright, 2009 WL 3246459, at *4.

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will “be in pretty good shape when she reaches the age of majority.” However, the trial court
made this finding in the absence of evidence about the extent of Kaitlyn’s recovery from her
injuries.

Dunaway’s affidavit establishes that he spent over a year on the case, making
preparations to go to trial, if necessary. After determining that the extent of Kaitlyn’s
damages far exceeded the available insurance proceeds, Dunaway spent much of his time and
labor locating “deep pockets” adequate to compensate Kaitlyn for her injuries and actually
obtaining that recovery. Because Grandmother’s estate was not liquid, Dunaway reviewed
property records to determine the real estate holdings. He also appeared in Fentress County
Chancery Court to advise the chancellor of Kaitlyn’s personal injury claim and to prevent the
unsupervised private sale of the real properties in Grandmother’s estate. While the resolution
did not come quickly, Dunaway achieved this result through mediation and settlement, soon
enough to avoid the uncertain outcome and additional hours associated with trial.33

We note that the case did not present an extraordinarily high degree of novelty or
difficulty. The trial court found that other, less experienced attorneys might have settled the
case at insurance policy limits, but it was hardly an original strategy for Dunaway to look to
the assets of Grandmother’s estate upon discovering the inadequate insurance coverage.
Grandmother’s property, though not liquid, was available and attachable. Dunaway engaged
in a diligent yet relatively straightforward investigation to increase the amount of Kaitlyn’s
recovery.

However, at the beginning of the case, Dunaway could not have known what he would
ultimately recover on Kaitlyn’s behalf. When investigating Grandmother’s estate, he could
have discovered just as easily that the estate had minimal assets. “Successful outcomes often
make risks seem less risky in hindsight than they were at the time,” Pellegrin, 605 F.3d at
248, and we must remain mindful of those risks when determining what is a reasonable fee
at the conclusion of the litigation.

In final analysis, given that the effective hourly rate of Dunaway’s fee award is so
high, we almost certainly would have awarded a lesser amount if we were reviewing
Dunaway’s fee request de novo. We recognize that the trial court considered the existence
of the contingent fee agreement and cited the fee “arrangements” as one of several bases for
the fee award, a practice which we have now annulled. Nonetheless, the court properly
acknowledged that a next friend’s contract for attorney’s fees would not bind a minor and

33
If Dunaway had risked the uncertainty, taken the case to trial, and obtained the same recovery, we
might not be having this in-depth discussion about whether Dunaway’s fee award causes an injustice to
Kaitlyn, because the additional hours spent trying the case would have reduced the effective hourly rate.

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permissibly weighed as an “important” factor the parties’ stipulation concerning the fee
customarily charged in the locality for similar legal services. See Tenn. Sup. Ct. R. 8, RPC
1.5(a)(3). The court also made findings as to all the other RPC 1.5(a) factors based on
Dunaway’s testimony and the exhibits admitted into evidence, and ultimately awarded
Dunaway a fee equal to 30.8% of the $425,000 settlement, less than one-third of Kaitlyn’s
recovery. Thus, we are persuaded that the record contradicts Romer’s assertion that the trial
court simply upheld the contingent fee agreement in determining the fee at the remand
hearing.34

We reiterate that our courts—both appellate and trial alike—have the responsibility
to consider a minor’s best interests. Nashville Trust Co., 270 S.W.2d at 475; Wilson, 11
Tenn. App. at 336. However, recognizing that the appropriate inquiry is whether the trial
court abused its discretion, we decline to substitute our judgment for that of the trial court.
Given the result that Dunaway obtained in the case, the extent to which that result actually
benefits Kaitlyn, the labor Dunaway invested to obtain that result, and the discretion we
accord to the trial judge, we cannot say that the fee award is illogical, clearly erroneous, or
an injustice to Kaitlyn.

Accordingly, we affirm the trial court’s $131,000 fee award to Dunaway for services
rendered on Kaitlyn’s behalf. This fee award is $10,666.66 less than the trial court originally
awarded prior to reversal in the First Appeal. The trial court has already ordered Dunaway
to return $10,000 of the original fee award to Father, as Kaitlyn’s parent and next friend, and
Father has been ordered to apply that amount to the payment of Romer’s guardian ad litem
fee. We affirm that judgment and order Dunaway to return the remaining $666.66 of the
original fee award to Father, as Kaitlyn’s parent and next friend. Father may apply this
amount to pay court costs or invest it with the other settlement proceeds on Kaitlyn’s
behalf.35

34
The record before the trial court and the trial court’s analysis were not without their flaws. In
particular, regarding the fees customarily charged in the locality, see Tenn. Sup. Ct. R. 8, RPC 1.5(a)(3), the
parties stipulated to the fees for contingency-based personal injury cases involving adult plaintiffs and for
hourly work. They reached no agreement, however, regarding personal injury cases involving minor
plaintiffs. The record would have been stronger if Dunaway and/or Romer had submitted additional
testimony concerning the fee customarily considered reasonable in such cases. Also, with respect to the
nature and length of the professional relationship with the client, see id. RPC 1.5(a)(6), we note that the trial
court analyzed Dunaway’s relationship with Father, the parent and next friend, rather than Dunaway’s
relationship with Kaitlyn, his client in the case. These shortcomings in the record are not enough, however,
to conclude that the trial court abused its discretion.
35
Although we ultimately affirm the judgment of the lower courts, we commend Romer for his
performance as guardian ad litem in this case. In pursuing this sensitive issue of challenging another
(continued...)

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 CONCLUSION

An adult serving as next friend for a minor plaintiff cannot bind the minor to a
contract with counsel for the amount of the attorney’s fee. To determine a reasonable fee for
an attorney representing a minor, we hold that courts should analyze the ten factors set forth
in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). Additionally,
courts should be mindful of their particular responsibility to protect the minor’s best interests.
We decline to emphasize specific factors or require other factors in the analysis.

In this case we hold that the trial court, upon remand from the Court of Appeals, did
not abuse its discretion in awarding attorney Dunaway a $131,000 fee for services rendered
in this case on behalf of Kaitlyn Lee Wright Therefore, we affirm the judgment of the Court
of Appeals. We order attorney Dunaway to reimburse the extra $666.66 remaining from the
original fee award to David Lee Wright, as parent and next friend of Kaitlyn Lee Wright, for
the payment of court costs or investment with the settlement proceeds. Costs of this appeal
are taxed to the appellant, Kaitlyn Lee Wright, and her surety, for which execution may issue
if necessary.

_________________________________
CORNELIA A. CLARK, CHIEF JUSTICE

35
(...continued)
attorney’s fee in order to clarify the rule applicable to such cases, he has acted both in the best interests of
the child and in the finest traditions of the bar.

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