North Carolina law allows dependent spouses in divorce cases to seek compensation for their legal expenses, but does that extend to the lawyers who agree to help a divorcing spouse free of charge? The answer, according to the N.C. Supreme Court, in a decision handed down last month, is “no.“

Donald and Carrie Patronelli were wed in 1997. In 2001, they separated and later divorced. Mrs. Patronelli was awarded primary custody of the couple’s child, child support, postseparation support, and alimony.

North Carolina General Statue § 50-16.4 also allows for a judge to award lawyer’s fees: “At any time that a dependent spouse would be entitled to alimony pursuant to G.S. 50-16.3A, or postseparation support pursuant to G.S. 50-16.2A, the court may, upon application of such spouse, enter an order for reasonable counsel fees for the benefit of such spouse, to be paid and secured by the supporting spouse in the same manner as alimony.”

Judge Anne B. Salisbury denied Mrs. Patronelli’s request for lawyer’s fees, however, finding that the spouse hadn’t actually incurred legal fees because her lawyer was representing her pro bono, meaning services provided for the public good, usually without charge. The American Bar Association recommends each lawyer perform 50 hours of pro bono work each year, with the majority being “without fee or expectation of fee.”

Carrie Patronelli’s lawyer appealed the ruling, which eventually came before the N.C. Supreme Court. Both the North Carolina Bar Association and a variety of legal aid organizations filed friend-of-the-court briefs in the case.

Before the high court, five of the seven justices voted to uphold the lower court decision on Nov. 17.

“We do not decide, as did the Court of Appeals and the trial court, whether a dependent spouse must incur counsel fees before an award would be proper, because in this case we are unpersuaded that any fees ordered would have been for the benefit of defendant,” Justice Edward Brady wrote for the high court.

The logic behind the majority‘s reasoning was simple enough: Because Mrs. Patronelli didn’t actually owe her lawyer anything, the award would not be for her benefit. In addition, the case was almost over, so there was little, if any, additional litigation that the fees would help finance.

“Simply put, only defendant’s counsel stood to benefit from any fees awarded by the trial court; and there is no statutory authority permitting a trial court to enter an order of counsel fees for the benefit of counsel,” Brady wrote.

Justices Paul Newby and Patricia Timmons-Goodson dissented from the majority holding.

“A more natural reading is that the phrase ‘for the benefit of’ is synonymous with ‘on behalf of’,’” Newby wrote. “Hence, I believe the General Assembly employed the phrase as it is often used in reference to payments made to third parties on behalf of or for the benefit of other.”

Thus, the two justices would have held that payments to pro bono lawyers should be allowed. Newby also noted in his dissent that the definition of “benefit” could be broader; for example, an award for service original provided pro bono might allow the attorney-client relationship to continue to subsequent litigation on matters such as child custody, collections, or other matters.

Public policy considerations also favor a broader definition of benefit, and allowing payment for pro-bono lawyers.

“Without the threat of fee-shifting, supporting spouses have less incentive to settle cases in which their spouses are represented by pro bono counsel,” Newby wrote.

“Supporting spouses will also be tempted to provide dependent spouses with little or no support before litigation, because a destitute spouse is more likely to face a choice of pro bono counsel or no counsel at all, with either option benefiting the supporting spouse,” he wrote.

The case is Patronelli v. Patronelli, (55A06).

Michael Lowrey is an associate editor of Carolina Journal.