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Order that law firm pay attorney fees reversed

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The Indiana Court of Appeals reversed today an order awarding attorneys fees based on the actions of an Indianapolis law firm in a dispute involving the dissolution of another firm, finding the record didn't provide any insight into why the trial court granted the award.

In James W. Smyth v. Judy G. Hester and the Estate of Timothy P. Brazill; Plews Shadley Racher & Braun, as intervenor, No. 29A02-0803-CV-237, Plews Shadley Racher & Braun appealed the trial court order awarding attorney fees to Judy Hester and the Estate of Timothy P. Brazill. Hester, Brazill, and James Smyth practiced law together under the partnership Smyth Brazill Hester until Smyth advised the other two partners their partnership was over. A month later, Brazill died and Smyth and Hester were unable to agree as to how to end the partnership.

Smyth retained Plews as counsel to represent him in his complaint against Hester and Brazill's estate seeking damages, an accounting, and the appointment of receiver over SBH based upon alleged breach of fiduciary duties by Hester and Brazill. The estate also alleged breach of fiduciary duty and conversion against Smyth and requested an accounting and declaratory judgment. Hester counterclaimed against Smyth alleging breach of fiduciary duty, self-dealing, and conversion, and also requested for accounting.

The estate and Hester filed a motion for attorney fees and costs against Plews and Smyth because they believed Smyth and the firm were litigating a frivolous, unreasonable, and groundless claim in bad faith. The trial court found their actions in litigating the matters illustrated "their frivolous, unreasonable, and bad faith conduct in this case."

The Court of Appeals agreed in general with Plews' argument on appeal that the trial court order contained no finding of fact to support the judgment for attorney fees. None of the findings of fact contain a specific reference to a problematic litigation action and none of the conclusions of law reflect the legal authority and standard for an attorney fee award, wrote Judge Carr Darden.

"We acknowledge that the record may include some questionable litigation tactics that might support the trial court's exercise of its discretion to award attorney fees," the judge wrote. "However, our review in that regard is impaired by the fact that the order appealed does not provide us with any insight as to the trial court's reason for the award of attorney fees in this case, i.e., what the trial court found to be frivolous, unreasonable, and bad faith conduct. Accordingly, we remand to the trial court for further consideration and explanation of its judgment in that regard."

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  1. IF the Right to Vote is indeed a Right, then it is a RIGHT. That is the same for ALL eligible and properly registered voters. And this is, being able to cast one's vote - until the minute before the polls close in one's assigned precinct. NOT days before by absentee ballot, and NOT 9 miles from one's house (where it might be a burden to get to in time). I personally wait until the last minute to get in line. Because you never know what happens. THAT is my right, and that is Mr. Valenti's. If it is truly so horrible to let him on school grounds (exactly how many children are harmed by those required to register, on school grounds, on election day - seriously!), then move the polling place to a different location. For ALL voters in that precinct. Problem solved.

  2. "associates are becoming more mercenary. The path to partnership has become longer and more difficult so they are chasing short-term gains like high compensation." GOOD FOR THEM! HELL THERE OUGHT TO BE A UNION!

  3. Let's be honest. A glut of lawyers out there, because law schools have overproduced them. Law schools dont care, and big law loves it. So the firms can afford to underpay them. Typical capitalist situation. Wages have grown slowly for entry level lawyers the past 25 years it seems. Just like the rest of our economy. Might as well become a welder. Oh and the big money is mostly reserved for those who can log huge hours and will cut corners to get things handled. More capitalist joy. So the answer coming from the experts is to "capitalize" more competition from nonlawyers, and robots. ie "expert systems." One even hears talk of "offshoring" some legal work. thus undercutting the workers even more. And they wonder why people have been pulling for Bernie and Trump. Hello fools, it's not just the "working class" it's the overly educated suffering too.

  4. And with a whimpering hissy fit the charade came to an end ... http://baltimore.cbslocal.com/2016/07/27/all-charges-dropped-against-all-remaining-officers-in-freddie-gray-case/ WHISTLEBLOWERS are needed more than ever in a time such as this ... when politics trump justice and emotions trump reason. Blue Lives Matter.

  5. "pedigree"? I never knew that in order to become a successful or, for that matter, a talented attorney, one needs to have come from good stock. What should raise eyebrows even more than the starting associates' pay at this firm (and ones like it) is the belief systems they subscribe to re who is and isn't "fit" to practice law with them. Incredible the arrogance that exists throughout the practice of law in this country, especially at firms like this one.

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