Herro, McAndrews & Porter, S. C. v. Gerhardt, 214 N.W.2d 401 (Wis. 1974). · Go Syfert
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Herro, McAndrews & Porter, S. C. v. Gerhardt, 214 N.W.2d 401 (Wis. 1974). Cases Citing This Book View Copy Cite
128 citation events (27 in the last 25 years) across 10 distinct courts.
Strongest positive: Abdou v. Walker (nysd, 2022-05-06)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 18 distinct citers.
discussed Cited as authority (rule) Abdou v. Walker
S.D.N.Y. · 2022 · confidence medium
See Wis. Stat. § 895.01 (1) (Wisconsin survival statute, stating that “[c]auses of action for all damage done to property rights or interests of another” survive); Luster v. Martin, 58 F.2d 537, 539 (7th Cir. 1932) (breach of contract and unjust enrichment claims survive death of defendant); Sawyer v. Midelfort, 595 N.W.2d 423, 436 (Wis. 1999) (professional negligence claims); Herro, McAndrews & Porter, S.C. v. Gerhardt, 214 N.W.2d 401, 403 (Wis. 1974) (courts’ inherent power authorizes survival of attorneys’ fees claim flowing from breach of contract claim).
discussed Cited as authority (rule) Abdou v. Walker
S.D.N.Y. · 2021 · confidence medium
Courts have “inherent power to determine the reasonableness of attorneys’ fees and to refuse to enforce any contract that calls for clearly excessive or unreasonable fees.” Herro, McAndrews & Porter, S. C. v. Gerhardt, 214 N.W.2d 401, 402 (Wis. 1974), modified on other grounds by Standard Theatres, Inc. v. Wis. State, Dep’t of Transp., Div. of Highways, 349 N.W.2d 661, 670 (Wis. 1984).
cited Cited as authority (rule) Estate of Engebose v. Moraine Ridge Ltd. Partnership
Wis. Ct. App. · 1999 · confidence medium
Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 180 , 214 N.W.2d 401, 402 (1974).
examined Cited as authority (rule) Aspen Services, Inc. v. IT Corp. (6×) also: Cited "see"
Wis. Ct. App. · 1998 · confidence medium
Aspen argues that the trial court erroneously exercised its discretion in denying Aspen, as a sanction for the incivility of its attorney, more than $44,000 in attorney's fees and costs. *495 Relying on Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 184 , 214 N.W.2d 401, 404 (1974), Aspen contends that "when the reasonableness of attorneys fees is challenged on appeal, the appellate court is not bound by the trial court's findings and is required to make an independent review of the matter and make its own determination of reasonableness." Aspen is wrong.
cited Cited as authority (rule) State Ex Rel. Hodge v. Town of Turtle Lake
Wis. Ct. App. · 1994 · confidence medium
Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 184 , 214 N.W.2d 401, 404 (1974).
cited Cited as authority (rule) State v. Babler
Wis. Ct. App. · 1992 · confidence medium
Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 180 , 214 N.W.2d 401, 402 (1974). (b) Sentence Beyond Guidelines.
cited Cited as authority (rule) Saenz v. Murphy
Wis. Ct. App. · 1989 · confidence medium
Herro, McAndrews and *676 Porter v. Gerhardt, 62 Wis. 2d 179, 180 , 214 N.W.2d 401, 402 (1974).
discussed Cited as authority (rule) Glamann v. St. Paul Fire & Marine Insurance (2×)
Wis. Ct. App. · 1987 · confidence medium
An independent review on appeal as to the reasonableness of attorney fees is possible "because the value of legal services is reviewed on appeal by judges who have expert knowledge as to the reasonable value of legal services.” Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 183 , 214 N.W.2d 401, 403 (1974).
discussed Cited as authority (rule) In Matter of Estate of Trotalli
Wis. · 1985 · confidence medium
In Estate of Tierney, 70 Wis. 2d 438, 444 , 234 N.W.2d 357, 360 (1975), the supreme court said: “ ‘The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and character of the services rendered, the labor, the time, and trouble involved, the character and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession; to which may be added the general ability of the client to pay and the pecuniary benefit …
discussed Cited as authority (rule) Stivarius v. DiVall
Wis. Ct. App. · 1983 · confidence medium
The Wisconsin Supreme Court in Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 182 , 214 N.W.2d 401, 402 (1974), said: It is established that courts have the inherent power to determine the reasonableness of attorney’s fees and to refuse to enforce any contract that calls for clearly excessive or unreasonable fees. [Footnote omitted.] This inherent power is premised on the court’s “ ‘supervisory control of the practice of the law,’ ” Herro, 62 Wis.2d at 184 , 214 N.W.2d at 403 -04 (quoting In Re Integration of Bar, 5 Wis.2d 618, 622 , 93 N.W.2d 601, 603 (1958)), and on judge…
cited Cited as authority (rule) Wengerd v. Rinehart
Wis. Ct. App. · 1983 · confidence medium
The pertinent factual considerations are outlined in Herro, McAndrews & Porter v. Gerhardt, 62 Wis. 2d 179, 184 , 214 N.W.2d 401, 404 (1974) and other cases, as well as S.C.R. 20.12.
cited Cited as authority (rule) Kluenker v. State
Wis. Ct. App. · 1982 · confidence medium
Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 182 , 214 N.W.2d 401, 402 (1974).
discussed Cited as authority (rule) State v. Sidney
Wis. · 1975 · confidence medium
See State v. Kenney (1964), 24 Wis. 2d 172, 176 , 128 N. W. 2d 450 ; Conway v. Sauk County (1963), 19 Wis. 2d 599, 606 , 120 N. W. 2d 671 . 3 (1961), 14 Wis. 2d 479, 488 , 111 N. W. 2d 419 . 4 Herro, McAndrews & Porter v. Gerhardt (1974), 62 Wis. 2d 179, 183, 184 , 214 N. W. 2d 401 ; Touchett, supra, page 488. 5 29 Wis. 2d at page 137 . 6 (1965), 29 Wis. 2d 132 , 138 N. W. 2d 129 . 7 (1964), 24 Wis. 2d 172 , 128 N. W. 2d 450 . 8 (1963), 19 Wis. 2d 599 , 120 N. W. 2d 671 .
examined Cited "see" Markwardt v. Zurich American Insurance (3×)
Wis. Ct. App. · 2006 · signal: see · confidence high
See Herro, 62 Wis.2d at 183 , 214 N.W.2d 401 ; Tonn, 6 Wis.2d at 504 , 95 N.W.2d 261 .
examined Cited "see" Pfeifer v. Sentry Insurance (4×)
E.D. Wis. · 1990 · signal: see · confidence high
See Herro, McAndrews and Porter, S.C. v. Gerkardt, 62 Wis.2d 179, 183 , 214 N.W.2d 401, 403 (1974).
discussed Cited "see" Estate of Boyle v. Wickhem, Buell, Meier, Wickem & Southworth, S.C.
Wis. Ct. App. · 1986 · signal: see · confidence high
See Knoll v. Klatt, 43 Wis.2d 265 , 168 N.W.2d 555 (1969) (overruled on other grounds by Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis.2d 199, 183-84 , 214 N.W.2d 401, 403-04 (1974); Tonn v. Reuter, 6 Wis.2d 498 , 95 N.W.2d 261 (1959)).
discussed Cited "see, e.g." James T. Murphy v. Nancy C. Holland (2×)
Wis. Ct. App. · 2021 · signal: see also · confidence low
Bank v. Nicolaou, 113 Wis. 2d 524, 537 , 335 N.W.2d 390, 396 (1983); see also Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 184 , 214 N.W.2d 401 (1974); Theuerkauf v. Schnellbaecher, 64 Wis. 2d 79, 93 , 218 N.W.2d 295 (1974); Thuot v. Fasting, 260 Wis. 79, 86 , 49 N.W.2d 906 (1951); Touchett v. E Z Paintr Corp., 14 Wis. 2d 479, 488 , 111 N.W.2d 419 (1961).
discussed Cited "see, e.g." Standard Theatres, Inc. v. State, Department of Transportation (2×)
Wis. Ct. App. · 1983 · signal: see also · confidence low
See also Herro, McAndrews & Porter, S.C. v. Gerhardt, 62 Wis. 2d 179, 184 , 214 N.W.2d 401, 404 (1974).
Herro, McAndrews & Porter, S. C., Respondent,
v.
Gerhardt, Appellant
323.
Wisconsin Supreme Court.
Feb 5, 1974.
214 N.W.2d 401
For the appellant there were briefs by Steven N. Gerhardt of Madison, pro se, and oral argument by John C. Fritsehler of Madison., For the respondent there was a brief by Herró, Me-Andrews & Porter, S. C., of Madison, and oral argument by Jack DeWitt of Madison.
Hanley, Hansen, Wilkie.
Cited by 51 opinions  |  Published

Lead Opinion

Hanley, J.

The sole issue to be determined on appeal is whether the attorney’s fees charged the appellant for services rendered in a prior divorce action were unreasonable and excessive and thus unenforceable.

It is established that courts have the inherent power to determine the reasonableness of attorney’s fees and to refuse to enforce any contract that calls for clearly excessive or unreasonable fees.[1] Such inherent power of the court may be exercised either during the action from which the charges for attorney’s fees emanates [2] or in a subsequent suit on that contract for attorney’s services. This is especially true when — as in the case at bar — an attorney contracts with his client for compensation during the existence of the relation of attorney and client. If such a contract exacts an unreasonable fee, courts will not permit its enforcement against the client.[3]

[*183] Since courts have the inherent power and responsibility to determine whether the attorney’s fees in question are reasonable and to refuse enforcement of those charges which are not, this court must determine what the reasonable value for similar attorney’s services would be in the instant action.

The trial court stated in an advisory capacity that:

“The court was quite impressed by the testimony of Mr. John McCarthy, Jr., of the State Bar Association. Mr. McCarthy testified that an appropriate fee would range in the area from $3,000 to $4,500. The setting of the fee approximates the court’s determination; and the court, therefore, fixes the reasonable fee at $3,500.”

This court has stated that since the trial court’s determination of the value of attorney’s fees is a finding of fact, it will be sustained unless clearly unreasonable and against the great weight and clear preponderance of the evidence. Knoll v. Klatt (1969), 43 Wis. 2d 265, 271, 168 N. W. 2d 555; Estate of Marotz (1953), 263 Wis. 99, 103, 56 N. W. 2d 856. However, in Touchett v. E Z Paintr Corp. (1961), 14 Wis. 2d 479, 488, 111 N. W. 2d 419, the court held that in effect an independent review as to the reasonableness of attorney’s fees would be performed on appeal.[4]

“The general rule is that a trial court’s findings of fact will not be disturbed on appeal unless contrary to the great weight and clear preponderance of the evidence. However, an exception to this rule exists with respect to determinations of the value of legal services. ' This is because the value of legal services is reviewed on appeal by fridges who have expert knowledge as to the reasonable value of legal services.” (Citation omitted.) (Emphasis supplied.)

[*184] Thus, it is apparent that a conflict exists as to the tests applied by this court in determining the issue of reasonableness of attorney’s fees — i.e., “unreasonable” test and an “independent review” test. Since this court exercises an inherent supervisory power over the practice of law:

“We must reiterate, the primary duty of the courts as the judicial branch of our government is the proper and efficient administration of justice. Members of the legal profession by their admission to the bar become an important part of that process and this relationship is characterized by the statement that members of the bar are officers of the court. . . . The practice of the law in the broad sense, both in and out of the courts, is such a necessary part of and is so inexorably connected with the exercise of the judicial power that this court should continue to exercise its supervisory control of the practice of the law.” (Emphasis supplied.) In re Integration of Bar (1958), 5 Wis. 2d 618, 622, 93 N. W. 2d 601.

and since, we think, such power would be more effectively exercised with an independent review, this court will independently review attorney’s fees when challenged on appeal and any language to the contrary is withdrawn.

In determining the reasonable value of attorney’s fees for services rendered, the proper factors to be considered are as follows:

“ ‘ “The things to be taken into consideration in determining the compensation to be recovered by an attorney are the amount and character of the services rendered, the labor, the time, and trouble involved, the character and importance of the litigation, the amount of money or value of the property affected, the professional skill and experience called for, and the standing of the attorney in his profession; to which may be added the general ability of the client to pay and the pecuniary benefit derived from the services.” ’ ” [5]

[*185] From an independent review of the record we are satisfied that the reasonable value of the legal services at issue on this appeal is the maximum range of $4,500 as testified' to by Attorney John McCarthy, Jr. This amount is the reasonable value of the services rendered by respondent DeWitt to appellant Gerhardt.

We conclude that the judgment of the trial court should be reversed and the case remanded to the trial court to enter judgment for the respondent in the sum of $4,500 plus interest and costs.

The sole reason that the trial court entered judgment for $5,500 was because the trial judge incorrectly believed that he lacked the inherent power to determine a reasonable value for such services performed. Such was an error of law under either of two rationales:

1. The court’s inherent power to determine reasonableness and to refuse to enforce an unreasonable contract for attorney’s fees.

2. That the burden of proof was upon the respondent attorney to prove the reasonableness of his fees — in that at the time the contract was created an attorney-client relationship already existed — and the respondent failed to carry his burden of proof. See State v. MacIntyre, supra.

By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment consistent with this opinion.

Wilkie, J., took no part.
1

See: Hennen v. Hennen (1972), 53 Wis. 2d 600, 193 N. W. 2d 717 (wherein the court refused to permit recovery of attorney’s fees which the court determined to be unreasonable); Hutterli v. State Conservation Comm. (1967), 34 Wis. 2d 252, 148 N. W. 2d 849 wherein the court, in determining the reasonableness of a contingent fee contract, states:

“While there is nothing per se improper in a contingent fee contract, it does not automatically follow that the circuit judge must honor it in applying his equitable discretion under sec. 32.06 (9) (a), Stats. If it represents a reasonable charge it should be granted; if it is excessive it should not be granted. Thus, a contingent fee agreement is only a guide, but not a control on the question of a reasonable fee.” (Emphasis supplied.)
2

Hennen v. Hennen, supra.

3

State v. MacIntyre (1941), 238 Wis. 406, 416, 298 N. W. 200; 7 Am. Jur. 2d, Attorneys at Law, p. 170, sec. 211.

4

See: Hennen v. Hennen, supra; State v. DeKeyser (1965), 29 Wis. 2d 132, 138 N. W. 2d 129; Lakeshore Commercial Finance Corp. v. Bradford Arms Corp. (1970), 45 Wis. 2d 313, 330, 173 N. W. 2d 165.

5

Touchett v. E Z Paintr Corp., supra, citing Estate of Huffman (1944), 349 Pa. 69, 64, 36 Atl. 2d 640. The reference to the “ability of the client to pay” as a factor in determining the[*185] value of services has been modified by this court in Hennen v. Hennen, supra. The “ability of a client to pay” should be taken into consideration only if the client is unable to pay a reasonable fee because of a lack of means. See Code of Professional Responsibility, Ethical Considerations, 43 Wis. 2d vii, xviii.

Concurrence in Part

Robert W. Hansen, J.

(concurring in part; dissenting in part). The court majority finds the respondent attorney entitled only to a reasonable fee for his services. The[*186] writer agrees. Expert testimony on reasonableness of fee for the services rendered, given by a state bar association official, set the range of reasonable fee allowable from a minimum $8,000 to a maximum $4,500. The court majority fixes the reasonable fee to be awarded at $4,500. The writer disagrees. The trial court in its opinion held that a reasonable fee here would be $8,500. While stated as a conclusion of law rather than as a finding of fact, the trial court’s setting of $3,500 as a reasonable fee appears to be an appropriate holding. So the writer would set the fee for legal services due respondent from appellant at $3,500, the amount found to be a reasonable fee by the trial court.