A recent Metropolitan News story, “Lawyers Who Represent Each Other Not Entitled to Fees” reports that a California appellate court rejected a request for attorney fees by two northern California practitioners who represent each other in a lawsuit against a former mutual client in an apparent effort to evade the rule against compensation for lawyers who engage in self-representation.  In an unpublished decision, Law Offices of Edward Higginbotham v. Horejsi (pdf), the appeals court concluded Alameda Superior Court Judge Jon Tigar had not abused his discretion in declining to award fees to San Francisco attorney Edward M. Higginbotham and Berkeley practitioner Michael M. Sims.

In the underlying case, Michael Horejsi, the owner of an apartment building in Oakland, had hired Sims to represent him in various lawsuits and Higginbotham to represent him in his defense against a civil injunction.  After Horejsi failed to pay fees owed to the attorneys, they each filed complaints against Horejsi.  In fee dispute arbitration, a panel awarded $10,764 to Sims and $21,557 to Higginbotham.  Horejsi rejected these awards and filed a cross-complaint in superior court for legal malpractice and breach of contract.  At trial, Sims served as the attorney for Higginbotham and Higginbotham was counsel for Sims.  The jury found that Horejsi breached his contacts with Higginbotham and Sims, and had committed fraud against them by promising to pay their legal fees.  The jury awarded $13,338 to Sims and $23,843 to Higginbotham.  Horejsi appeared in propria persona.

After the trial, Higginbotham and Sims subsequently requested attorney fees but Tigar declined to issue a fee award, based on the rule of Trope v. Katz (1995).  That case held that “an attorney litigating in propria persona cannot be said to ‘incur’ compensation for his time and his lost business opportunities, because he does not become obligated to pay for them,” and therefore cannot recover fees.  Higginbotham and Sims appealed, arguing that Trope applies only to requests for attorney fees under Civil Code Sec. 1717.  The appellate court, however, disagreed.

In Trope, the high court said Sec. 1717 “was designed to establish mutuality of remedy when a contractual provision makes recovery of attorney fees available to only one party, and to prevent the oppressive use of one-sided attorney fee provisions.”  The justices reasoned that “[i]f an attorney who is the prevailing party in an action to enforce a contract with an attorney fee provision can recover compensation for the time he expends litigating his case in propria persona, but a non-attorney pro se litigant cannot regardless of the personal and economic value of such time simply because he has chosen to pursue a different occupation, every such contract would be oppressive and one-sided.”  Justice James R. Lambden also emphasized that Higginbotham and Sims were not seeking fees mandated by statute, but monies which the trial court had discretion to award.