It does not happen very often in the American legal system, but occasionally in a lawsuit, one side is ordered by the court to pay at least a portion of the other side’s legal fees.
I still remember quite clearly the first time I got an attorneys’ fee award all on my own. It was a discovery motion, and in addition to repeatedly blowing past deadlines and failing to produce a bunch of the material we were asking for, the lawyer on the other side was needlessly a huge dick about every single little thing over the course of the entire case. It felt really good to get that check.
In that instance, the court order was ambiguous as to whether the opposing lawyer or the adverse party should pay the fee award. The check came directly from the opposing law firm (which I will not name out of a probably misguided sense of professional courtesy, even though I should, because every person I interacted with there was a truly awful human being). The name on the check does not necessarily mean this law firm actually paid out-of-pocket for this discovery sanction, however.
Law firms advance costs for any number of things on behalf of clients, or apply part of a retainer deposit to upcoming expenses, all the time. Clients typically have no idea what expenditures should or should not be their responsibility and just pay for whatever their lawyers tell them they need to pay for because they are not the ones who are experts at how to navigate through a lawsuit. Although I never had a fee award levied against my side in any of my own cases as a procedural sanction (though there might have been a few need-based ones in family law cases which are always the responsibility of the client), at the firm where I worked, I saw other attorneys foisting fee awards onto clients that probably should have been paid by the firm all the time.
Now, it is entirely possible the particular lawyer I had mostly been dealing with on that motion to compel discovery production accepted responsibility for the sanction, did the right thing, and went to the other shareholders at his firm to admit that this had been his fault and that the client should not be on the hook for the attorneys’ fee award. I sincerely doubt it though, given his repulsive personality and the way that I have seen so many other lawyers behave in similar situations.
It is conceivable that a discovery sanction can arise through no fault of the attorney representing a particularly obstinate person or entity. There are a few litigants out there who simply refuse to produce documents. It is almost always the lawyer’s fault, though, when there is a fee award in discovery, either through pompous overconfidence in the solidity of one’s own legal position as to what information actually needs to be turned over or through negligence in failing to keep the client well-appraised of the approaching deadlines and the consequences of ignoring them.
Beyond discovery, there are a lot of other reasons why a court might shift the responsibility to pay attorneys’ fees from one side in a case to the other. The classic example is a Rule 11 violation.
To summarize Rule 11 for the nonlawyers out there, Rule 11, among other things, gives a district court the authority to impose a sanction against a lawyer or party who unreasonably presents a motion for improper purposes like to harass the other side or to needlessly increase litigation costs. It also allows a court to punish a lawyer or party who makes frivolous legal arguments or totally unsupported factual allegations. While Rule 11 does prohibit monetary sanctions on a represented party when it comes to the provision against advancing an unwarranted legal contention, the rule is so squishily worded with all its talk of reasonableness and consideration of the circumstances and likeliness that even a totally unqualified judge could justify applying it however they wanted.
Now, Rule 11 does not actually get enforced very often. Most judges are very cautious about determining prior to the ultimate conclusion of a lawsuit that, basically, one side is unreasonable and perfectly willing to lie in documents signed under oath. When it does get enforced, the resulting order should specify who is to pay the sanction — the law firm, individual attorney, or party — but it’s not like the judge necessarily follows up on that unprompted. If you’re already getting sanctioned for violating Rule 11, I don’t much trust you to accurately explain to your client who needs to pay the fees for it and why.
There are all sorts of forums in different jurisdictions for clients (and former clients) to try to seek redress when they are screwed by their lawyers. Sometimes, after months or years of diligent follow-through, a few of them even get it. Most just get ground down and give up.
Powerful clients, like big corporations or high-net-worth individuals, will be fine. They can stand up to their lawyers and push back or just happily survive paying for fee shifting sanctions out of their excessively deep pockets. All the rest are more or less at the mercy of their lawyers and will continue to pay for a lot of sanctions that shouldn’t really be their responsibility. Unfortunately, “mercy” is not a highly valued quality in this profession.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.
The post Attorneys’ Fees Awarded In Civil Litigation Generally Should Be Paid By The Lawyer But Usually The Client Gets Screwed appeared first on Above the Law.
It does not happen very often in the American legal system, but occasionally in a lawsuit, one side is ordered by the court to pay at least a portion of the other side’s legal fees.
I still remember quite clearly the first time I got an attorneys’ fee award all on my own. It was a discovery motion, and in addition to repeatedly blowing past deadlines and failing to produce a bunch of the material we were asking for, the lawyer on the other side was needlessly a huge dick about every single little thing over the course of the entire case. It felt really good to get that check.
In that instance, the court order was ambiguous as to whether the opposing lawyer or the adverse party should pay the fee award. The check came directly from the opposing law firm (which I will not name out of a probably misguided sense of professional courtesy, even though I should, because every person I interacted with there was a truly awful human being). The name on the check does not necessarily mean this law firm actually paid out-of-pocket for this discovery sanction, however.
Law firms advance costs for any number of things on behalf of clients, or apply part of a retainer deposit to upcoming expenses, all the time. Clients typically have no idea what expenditures should or should not be their responsibility and just pay for whatever their lawyers tell them they need to pay for because they are not the ones who are experts at how to navigate through a lawsuit. Although I never had a fee award levied against my side in any of my own cases as a procedural sanction (though there might have been a few need-based ones in family law cases which are always the responsibility of the client), at the firm where I worked, I saw other attorneys foisting fee awards onto clients that probably should have been paid by the firm all the time.
Now, it is entirely possible the particular lawyer I had mostly been dealing with on that motion to compel discovery production accepted responsibility for the sanction, did the right thing, and went to the other shareholders at his firm to admit that this had been his fault and that the client should not be on the hook for the attorneys’ fee award. I sincerely doubt it though, given his repulsive personality and the way that I have seen so many other lawyers behave in similar situations.
It is conceivable that a discovery sanction can arise through no fault of the attorney representing a particularly obstinate person or entity. There are a few litigants out there who simply refuse to produce documents. It is almost always the lawyer’s fault, though, when there is a fee award in discovery, either through pompous overconfidence in the solidity of one’s own legal position as to what information actually needs to be turned over or through negligence in failing to keep the client well-appraised of the approaching deadlines and the consequences of ignoring them.
Beyond discovery, there are a lot of other reasons why a court might shift the responsibility to pay attorneys’ fees from one side in a case to the other. The classic example is a Rule 11 violation.
To summarize Rule 11 for the nonlawyers out there, Rule 11, among other things, gives a district court the authority to impose a sanction against a lawyer or party who unreasonably presents a motion for improper purposes like to harass the other side or to needlessly increase litigation costs. It also allows a court to punish a lawyer or party who makes frivolous legal arguments or totally unsupported factual allegations. While Rule 11 does prohibit monetary sanctions on a represented party when it comes to the provision against advancing an unwarranted legal contention, the rule is so squishily worded with all its talk of reasonableness and consideration of the circumstances and likeliness that even a totally unqualified judge could justify applying it however they wanted.
Now, Rule 11 does not actually get enforced very often. Most judges are very cautious about determining prior to the ultimate conclusion of a lawsuit that, basically, one side is unreasonable and perfectly willing to lie in documents signed under oath. When it does get enforced, the resulting order should specify who is to pay the sanction — the law firm, individual attorney, or party — but it’s not like the judge necessarily follows up on that unprompted. If you’re already getting sanctioned for violating Rule 11, I don’t much trust you to accurately explain to your client who needs to pay the fees for it and why.
There are all sorts of forums in different jurisdictions for clients (and former clients) to try to seek redress when they are screwed by their lawyers. Sometimes, after months or years of diligent follow-through, a few of them even get it. Most just get ground down and give up.
Powerful clients, like big corporations or high-net-worth individuals, will be fine. They can stand up to their lawyers and push back or just happily survive paying for fee shifting sanctions out of their excessively deep pockets. All the rest are more or less at the mercy of their lawyers and will continue to pay for a lot of sanctions that shouldn’t really be their responsibility. Unfortunately, “mercy” is not a highly valued quality in this profession.
Jonathan Wolf is a civil litigator and author of Your Debt-Free JD (affiliate link). He has taught legal writing, written for a wide variety of publications, and made it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.
The post Attorneys’ Fees Awarded In Civil Litigation Generally Should Be Paid By The Lawyer But Usually The Client Gets Screwed appeared first on Above the Law.
