PBCBA BAR BULLETINS PBCBA Bulletin - January 2020 | Page 21

PROFESSIONALISM CORNER
Section 57.105: A New “Fee Shifting” Statute?
JENNIFER S. CARROLL
We are all familiar with the “American rule”
on legal fees: generally, a court can only
award attorneys’ fees to a party when such
fees are “expressly provided for by statute,
rule, or contract.” In most cases, litigants are
responsible for paying their own fees and
costs in pursuing or defending a lawsuit.
As originally enacted, Section 57.105
authorized an award of attorney’s fees
against a party and that party’s attorney
when the court found “a complete absence
of a justiciable issue of either law or fact
raised by the complaint or defense of the
losing party.” §57.105 (1), Fla. Stat. (1995).
On October 1, 1999, Section 57.105 was
substantially revised. Under the 1999
amendment, the “complete absence of a
justiciable issue” language was omitted,
and attorneys’ fees could now be assessed
if the court found that the losing party or
the losing party’s attorney “knew or should
have known” that a claim or defense, when
initially presented to the court or at any
time before trial: (a) was not supported by
the material facts necessary to establish
the claim or defense; or (b) would not be
supported by the application of the then-
existing law to those material facts. §57.105
(1), Fla. Stat.
In 2002, the Florida Legislature added a “safe
harbor” provision, subsection (4), which
states that “[a] motion by a party seeking
sanctions under this section must be served
but may not be filed with or presented to the
court unless, within 21 days after service
of the motion, the challenged paper, claim,
defense, contention, allegation, or denial is
not withdrawn or appropriately corrected.”
The purpose of Section 57.105 (4) is to give
a litigant an opportunity to withdraw a
frivolous claim or defense within the scope
of the statute.
though that party ultimately prevails in the solely as a new alternative for obtaining
action.
reimbursement of your client’s fees against
the opposing party and that party’s attorney
Under Section 57.105, attorney fees are is not a laudable practice, and certainly
assessed “in equal amounts” against the does not comport with the goals of Section
losing party and the losing party’s attorney. 57.105. Nor does such a tactic comport
The attorney can avoid personal liability with the ideals all of us strive to maintain
for fees “if he or she has acted in good faith, in a profession which requires constant
based on the representations of his or her vigilance with respect to these ideals.
client.” §57.105 (1), Fla. Stat.
Without question a party has every right to
Without question, the 1999 amendments seek Section 57.105 fees where appropriate.
changed the rules for all civil lawyers.
But attorneys work very hard, and most
do their very best to “get it right.” And yes,
The original intent behind Section 57.105 after the 1999 amendment, the legislature
was to deter frivolous claims and defenses added an attempted safeguard, a safe
in litigation. Certainly, this is a laudable harbor provision, whereby one must give
goal.
the opposing side a 21 day opportunity to
withdraw alleged unfounded claims or
But in recent years the broad language of defenses. But even before that initial letter
the statute is often abused. Some litigants goes out, attorneys owe it to themselves and
use the statute more as an opportunity to their profession to think twice – and give
shift responsibility for attorneys’ fees to serious thought to whether the situation in
the opposing litigant and that litigant’s their case is truly a situation contemplated
attorney. These attorneys will seek Section by this particular statute.
57.105 fees “at the drop of a hat.” There
has arisen in recent years an overuse and Jennifer S. Carroll concentrates on state
abuse of the statute – based on reasons and federal civil appeals as well as complex
not contemplated by the drafters of this civil litigation, including post-judgment
legislation. Civil litigators and family law proceedings. Ms. Carroll is a Board Certified
litigators have seen a tremendous upswing Appellate Lawyer, is AV-rated, and is listed
in these types of fee shifting attempts under in the Bar Register of Preeminent Lawyers.
Section 57.105.
She is admitted to practice before all state
courts, the U.S. Supreme Court, U.S. Court
Consistent with the Rules Regulating the of Appeals for the Eleventh Circuit, and
Florida Bar, it is without question that the U.S. District Courts for the Middle and
attorneys should always treat each other Southern Districts of Florida.
with the utmost respect. “A lawyer’s conduct
should conform to the requirements of the
law, both in professional service to clients
and in the lawyer’s business and personal
affairs. A lawyer should use the law’s
procedures only for legitimate purposes and
not to harass or intimidate others. A lawyer
should demonstrate respect for the legal
system and for those who serve it, including
The
1999
amendment
significantly judges, other lawyers, and public officials. . .
broadened the court’s power to award fees. .” R. Regulating Fla. Bar 4. Preamble.
Section 57.105 (1) no longer applies only to
the entire action or defense; it now applies Most litigation is a highly emotional
to any particular claim or defense raised endeavor for all parties and their lawyers. In
at any time during the proceedings. Thus, such a charged atmosphere, it is even more
a court may assess attorneys’ fees against important to take a step back, and think
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a party who advances a meritless claim or about what is the true purpose underlying
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defense during the course of litigation even the statute. Using this unique statute
PBCBA BAR BULLETIN
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