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Getting Attorneys Fees When It’s All in the Family

The Ninth Circuit has made what some may call a pro-family ruling: Attorneys may recover fee awards in civil rights cases when they represent their spouses. Representing your spouse may not be a good idea — there’s a reason why surgeons don’t operate on their spouses — but it turns out that it may be lucrative.

It’s settled under California law that attorneys representing themselves in litigation are not eligible to recover attorney fees for their own services under either fee-shifting statutes or contractual fee clauses. Trope v Katz(1995) 11 C4th 274, 292, 45 CR2d 241. The supreme court based this decision on the dictionary definition of an attorney fee as the consideration a person pays or becomes liable to pay in exchange for legal services, as well as on the unfairness that would result if in pro per attorneys could recover fees but laypersons representing themselves could not.

Federal law agrees with this. Kay v Ehrler (1991) 499 US 432  (42 USC  §1988 does not permit attorney fee award to attorney-plaintiffs who represent themselves in successful civil rights actions).

But what about attorneys representing someone just one step away from themselves — their spouses?

The district court in Rickley v County of Los Angeles (.pdf) based its denial of fees to the attorney who represented her spouse on an assumption that the attorney was unable to provide “independent emotionally-detached counsel” for her wife, and thus shouldn’t get a fee award.

The Ninth Circuit didn’t completely disagree with the premise that spouses’ strong emotional bonds may lead to some risk that an attorney representing her spouse in may “allow emotion to cloud her independent legal judgment.” But the court stopped short at presuming that attorney-spouses generally can’t provide “independent, dispassionate legal advice.”

As The Recorder points out, the Rickley case may also set an interesting standard for attorneys whose marriages are not recognized by federal law. As an alternate basis for upholding the fee award, the attorney spouse argued that, although they are legally married in California, they are not spouses under federal law and thus shouldn’t be denied attorneys fees on the basis of their marriage. The Ninth Circuit downplayed this issue, saying that, because it was holding that a spouse could recover, it didn’t need to address it.

The Ninth Circuit’s decision is limited to fee awards in civil rights actions, and California courts have yet to weigh in on this precise issue.

What do you think, should attorneys be entitled to attorney fees awards when representing their spouses in any civil case? Are there certain types of cases in which it should not be permitted?

For everything you need to know about recovering attorney fees awards in all types of cases, turn to the gold standard — CEB’s California Attorney Fee Awards.

© The Regents of the University of California, 2011. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

3 Responses

  1. Attorneys should be entitled to fees in ALL cases in which an award of fees is allowed. Why should a lawyer who represents herself not be allowed to collect a fee if she wins? Does her time and effort have no value?

    The California (and, apparently, federal) rule is illogical and unfair. If I hire a lawyer to represent me, and he’s successful, he’s allowed to collect a fee. But if I (also a lawyer) represent myself, I’m not. Where’s the logic in that? My lawyer’s time and energy and hours of hard work are appropriately compensated, but if I do the work myself, they’re not? What…my work doesn’t count? My time and effort in successfully pursuing a case are worth nothing?

    And the total amount that the losing defendant has to pay depends on which lawyer is representing the plaintiff?

    The ridiculousness of this position can clearly be seen (if it’s not already obvious) by the perverse result that logically follows. If I have a valid civil rights claim (or other claim in which attorney fees can be awarded), I could get around this absurd rule by hiring a lawyer to represent me and be the attorney of record, with the proviso that I become his partner or “of counsel” and do the actual work, and if we win, he will split the fee with me, keeping a commission for himself and leaving me with the lion’s share for actually doing all the work. All perfectly legal.

    (As for the alleged “unfairness” of a nonlawyer not being able to collect a few if he represents himself, I see nothing unfair about that. If he wants to collect a fee for representing himself [or anyone else] in court, go to law school, bass the bar exam, and become a lawyer! For all the time, effort, and expense of going to law school, passing the bar exam, the MPRE, the background check, etc., we don’t get much in the way of privileges as a result, other than the right to pay bar dues and take MCLE classes for the rest of our careers. All we get is the right to charge for our services. And now the courts want to deny us THAT, too???)

  2. *Corrections: “collect a fee” and “pass the bar exam”. Sorry.

  3. […] Getting Attorneys Fees When It’s All in the Family […]

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