2017 ORS 125.098¹
Factors in determining award of attorney fees
  • appeal

(1) As used in this section, “party” means a person represented by an attorney when a request for court approval and payment of attorney fees has been made relating to a protective proceeding under ORS 125.095 (Fees, costs and disbursements payable in protective proceedings).

(2) A court shall consider the following factors in determining whether to award attorney fees under ORS 125.095 (Fees, costs and disbursements payable in protective proceedings):

(a) The benefit to the person subject to the protective proceeding by the party’s actions in the proceeding, which factor shall be given the greatest weight in the court’s consideration under this section.

(b) The objective reasonableness of the position asserted by the party.

(c) The party’s self-interest in the outcome of the proceeding.

(d) Whether the relief sought by the party was granted in whole or in part, subject to the respondent’s right to contest the proceeding.

(e) The conduct of the party in the transactions or occurrences that gave rise to the need for a protective proceeding, including any conduct of the party that was reckless, willful, malicious, in bad faith or illegal.

(f) The extent to which an award of attorney fees in the proceeding would deter others from asserting good faith positions in similar proceedings.

(g) The extent to which an award of attorney fees in the proceeding would deter others from asserting meritless positions in similar proceedings.

(h) The objective reasonableness of the party and the diligence of the party and the attorney during the proceeding.

(i) The objective reasonableness of the party and the diligence of the party in pursuing settlement of the dispute.

(j) Any other factor the court may consider appropriate under the circumstances of the proceeding.

(3) A court shall consider the factors specified in subsection (2) of this section in determining the amount of an award of attorney fees under ORS 125.095 (Fees, costs and disbursements payable in protective proceedings). In addition, the court shall consider the following factors in determining the amount of an award of attorney fees:

(a) The time and labor required in the proceeding, the novelty and difficulty of the issues involved and the skill needed to provide the legal services.

(b) The likelihood that the acceptance of the employment on behalf of the party by the attorney would preclude the attorney from other employment, when the likelihood should be apparent or was made apparent to the party.

(c) The fee customarily charged by an attorney in the locality for similar legal services.

(d) The time limitations imposed by the party or the circumstances of the proceeding.

(e) The experience, reputation and ability of the attorney providing the legal services.

(f) The amount of the attorney fees requested relative to the estate of the person subject to the protective proceeding, whether or not the estate of the person subject to the protective proceeding is subject to the direct or indirect control of a conservator.

(4) Except as provided in subsection (2)(a) of this section, no single factor listed in subsections (2) and (3) of this section shall be controlling in the court’s determination regarding attorney fees under this section.

(5) In an appeal from the award of or denial of a request for attorney fees under ORS 125.095 (Fees, costs and disbursements payable in protective proceedings) and this section, the court reviewing the award may not modify the decision of the court below in making or denying an award, or the decision of that court as to the amount of the award, except upon a finding of an abuse of discretion. [2013 c.99 §3; 2015 c.127 §1]

1 Legislative Counsel Committee, CHAPTER 125—Protective Proceedings, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors125.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.