Nutter v. Wallace

The captioned wrongful death settlement was heard and approved by the Court on January 16,1991, except for the question of fees to plaintiffs counsel which was taken under advisement pending receipt of counsel’s affidavit of time and labor.

It is the opinion of this Court that it not only has the authority, but has the affirmative duty, to determine the reasonableness of attorney’s fees in the settlement of any wrongful death case. Lovelace v. Lovelace, Administratrix, 237 Va. 174 (1989).

The Court has reviewed counsel’s Affidavit and Memorandum and the twelve factors set out in a footnote to Allen v. United States, 606 F.2d 432 (4th Cir. 1979), from the ABA Code of Professional Responsibility to be considered by courts in the approval attorney fee requests, with particular consideration to factors (1) the time and labor required in the case, (2) the novelty and difficulty of the questions, (3) the skill required to perform the necessary legal services, (5) the customary fee for similar work, (6) the contingency of a fee, (8) the award involved and the results obtained, (9) the experience, representation, and ability of the lawyer, (10) the undesirability of the case, and (12) the fee awards made in similar cases. I also note that Mr. Prosser had already discounted the fee set out in the sketch order from that contained in the fee agreement.

*565Upon consideration of all of the above, it is opinion that the one-third contingency fee set out in the fee agreement is appropriate and approved as to the distribution to Rose Marie Nutter, individually. From her $19,500.00 portion of the settlement, deduction of $6,500.00 attorney’s fee results in a distribution to her of $13,000.00, individually, and for the payment of $142.00 in court costs.

As to the $14,500.00 portion of the settlement to be held for the benefit of Tony Marie Nutter, an infant, however, it is the opinion of the Court that a reasonable attorney’s fee is $2,750.00 resulting in a distribution to the benefit of said infant of $11,750.00 and a total fee to Prosser, Partiremos & Bryant of $9,250.00.