Certification of Attorney Services
By Don Craig, Esquire.
Almost every litigation attorney, at some point in his or her career, will file a certification of attorney services. Most attorneys, particular younger attorneys, start with a template from an experienced practitioner and simply add the requested figures.
There is much more to drafting a effective certification of attorney services. First, it’s important to understand that R. 4:42-9(b) itemizes the information the certification is supposed to include. An existing template can be a good starting point, but only if the attorney who created the template did so to reflect the requirements of the court rule. If you’re going to be spending your career in litigation, particularly in an area such as estate litigation or matrimonial litigation where awards of counsel fees from other parties are more common, it’s a good idea to draft your own template by taking the requirements of the court rule and framing each requirement into an individual paragraph. That way you don’t forget anything and you also make it clear to the reader that you’ve read the applicable rule and you know what you’re doing.
The core element of an effective certification of attorney services is detail. Don’t write, “Letter to client -1.00 hour.” Rather, you might write, “Letter to client covering a copy of defendant’s deposition, explaining those areas where the deposition helps us and those where it hurts our case – 1.00 hour.” If you had a difficult issue, tell the court about that. If you got a great result for your client, tell the court about that also. Each is one of the criteria specified by the court rule and each makes your certification more effective.
A common deficiency in certifications of services is the failure to explain how you get past the American Rule which, generally stated, provides that each litigant should pay his or her own counsel fees and costs of litigation. There are exceptions to the American Rule in probate law, but it’s important to include the exception in your certification. Again, this reinforces to the reader that you know what you’re doing; that you know about the American Rule and that you understand that the mere fact that you have incurred this time does not mean that someone other than your client should pay your fees. In a probate matter, it’s important to specify whether you are seeking counsel fees from the estate or another party because the exceptions to the American Rule are different.