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Borson motion is a request for an order by a discharged attorney to pursue a request for direct fee payment from a former client's spouse if the request is expressly or impliedly authorized by the former client. However, if the former client does not give express or implied consent to the motion, the trial court may not entertain it. [In re Burnett, 2007 Cal. App. Unpub. LEXIS 1930 (Cal. App. 2d Dist. Mar. 9, 2007)]
In a family law case, an attorney who has been discharged by the client may thereafter file a Borson motion seeking attorney fees and costs directly from the opposing party, as long as the attorney is still counsel of record and has the former client's express or implied consent to bring the motion. It is filed before new counsel files a substitution form. When a lawyer files a Borson motion it, in effect, joins him/her as a party to the divorce proceedings insofar as giving a right to receive payment of legal fees from any cash that ultimately gets distributed by the court.
The motion is named after the famous case In re Marriage of Borson, 37 Cal. App. 3d 632 (Cal. App. 2d Dist. 1974) wherein the standard was set. In Borson, the wife discharged her attorneys prior to completion of discovery. Without the wife’s express consent, the attorneys filed a motion, “on her behalf,” seeking that the court direct the husband to pay the attorneys for the work done for wife up to that point. The court allowed the attorneys to withdraw and reserved ruling on the motion until trial of the remaining issues. The court subsequently ordered the husband to pay certain fees and costs to the wife’s former attorneys. On appeal the husband contended the court had no jurisdiction to do so. The appellate court upheld this procedure and the award. The court observed that the motion was on behalf of the wife because otherwise she would have then been liable to pay by herself to these attorneys for the reasonable value of services rendered. Further, her motion avoided a circuity in litigation - former counsel suing the wife for fees and she then asking the court to order the husband to pay what she has paid.