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 As originally enacted, Section 57.105 authorized an award of attorney’s fees against a party and that party’s attorney when the court found “a complete absence of a justiciable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21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”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 LEADING PRACTICE MANAGEMENT SOFTWARE a party who advances a meritless claim or about what is the true purpose underlying 10% Discount for Bar Members defense during the course of litigation even the statute. Using this unique statute PBCBA BAR BULLETIN 21