Borson motion California - In re Marriage of Borson
In re Marriage of Borson (1974) 37 Cal. App. 3d 632 (commonly known as a "Borson motion") allows a discharged attorney to pursue a request for direct fee payment from the former client's spouse if the request is expressly or impliedly authorized by the former client.
After the wife discharged her attorneys, but before she substituted in a new counsel, the former attorneys filed a motion on her behalf requesting the husband pay their fees and costs. The trial court granted the motion after wife retained new counsel.
The appellate court affirmed. "Notwithstanding the wife's discharge of these attorneys, they, as her agents, had the implied authority to file thereafter the motion on her behalf that appellant pay these additional sums," and "by not appearing at the hearing of the . . . motion after prior notice . . . and there objecting to the motion for additional fees and costs, she acquiesced in their having made the motion for her." (In re Marriage of Borson, supra, 37 Cal.App.3d at pp. 637-638.)
In that case, the appellate court concluded that under the circumstances before it, there was no jurisdictional barrier to the wife's former attorneys' motion to obtain payment of fees from the husband.
In Borson, prior to the discharge of the wife's attorneys, the court ordered the husband to pay a specific sum of the wife's fees directly to her attorneys. (Id. at p. 635.)
After their discharge, and without obtaining any express authority from the wife, the wife's former attorneys filed motions on her behalf requesting that the husband be directed to pay them additional fees and requesting permission to withdraw from the case. (Id. at p. 636.)
The trial court granted permission to withdraw, substituted the wife in propria persona, and postponed consideration of the attorney fees motion until trial or settlement of the remaining issues. Thereafter, the wife substituted in new counsel and the case was settled.
The trial court then ruled on the attorney fees motion filed by the former attorneys, ordering the husband to pay a portion of the wife's additional fees owed to her former attorneys. (Id. at pp. 634, 636-637.)
The Borson court rejected the husband's argument that the trial court had no jurisdiction to order that he pay additional fees to the wife's former attorneys because the fees had been requested after the attorneys had been discharged. (Borson, supra, 37 Cal. App. 3d at p. 637.)
The court reasoned that after the discharge the attorneys continued to represent the wife for purposes of winding up the relationship, which included making the attorney fees motion on her behalf, and obtaining the formal change in representation. (Ibid.)
The court noted that although the attorneys had been discharged when they requested the fees, there had not yet been a substitution of representation, and "in the interval between the discharge and substitution of representation, the wife's attorneys, as her attorneys of record, alone could appear in court for her and continued as her only attorneys in the proceeding." (Ibid.)
The Borson court concluded the discharged attorneys had the implied authority to file a motion on the wife's behalf seeking the husband's payment of the additional fees owed to them. (Borson, supra, 37 Cal. App. 3d at p. 637.)
The Borson court observed that the wife's objection surfaced only at the time the attorney fees motion was heard. (Ibid.)
However, her earlier failure to object led her former attorneys to believe that they had the authority to act on her behalf in pursuing the fee request. (Id. at pp. 638-639.)