Two older cases from the Oregon Supreme Court conclude that nonlawyers may not recover “attorney fees” when they prevail in litigation and represent themselves; but the Court has not answered whether lawyers may recover their own attorney fees when they prevail in litigation and represent themselves.
Last week, the Oregon Court of Appeals issued an opinion on this very issue in Colby v. Gunson, — P3d —, 2009 WL 1752695 (June 17 2009). Craig Colby is an Oregon lawyer and represented himself in an appeal under the Oregon Public Record Laws, after he was denied access to medical examiner’s reports. After successfully obtaining a remand, he sought attorney fees and costs under ORS 192.490(3), which provides:
(3) If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal. If the person prevails in part, the court may in its discretion award the person costs and disbursements and reasonable attorney fees at trial and on appeal, or an appropriate portion thereof.
The court analyzed the meaning of “attorney fee” and concluded that it means “the price demanded by an attorney for services rendered to a separate client entity.” The Court stated that “[i]t does not include the hypothetical compensation that a self-represented attorney might have been paid by another person.”
This is an interesting (and tough) interpretation of when attorney fees should be awarded. Although it may in some ways be “hypothetical compensation,” the lawyer is taking time from his own practice to represent himself — time which could have been spent billing or representing other clients. And the lawyer’s time is not only quantifiable, but has an objective value which can be presented to a court. Query whether this decision runs counter to public policy considerations, and whether this holding actually encourages lawyers to retain other lawyers.
The Court of Appeals last addressed this issue in Anderson v. Wheeler, 214 Or App 318, 164 P3d 1194 (2007), where a pro se lawyer sought attorney fees under ORS 36.425(4)(b). The statute required the taxing of “reasonable attorney fees and costs * * * incurred” by the successful party. The court concluded that the fees were not “incurred” by the pro se lawyer, reasoning:
In this case, the record does not show that plaintiff ‘incurred’ attorney fees in the ordinary sense of that term. The statement that plaintiff submitted shows, in some detail, the amount of time that he spent on various tasks in the course of the litigation. It also shows the value of that time, had the time been billed. But it also plainly states that all of plaintiff’s time was, in fact, ‘unbilled.’ Plaintiff did not state in his affidavit that he was liable to pay any expenses for his own representation. On this record, therefore, there is simply no basis on which we could conclude that plaintiff was liable for the payment of any attorney fees.
As I noted above, there are two older Oregon Supreme Court cases that deal with this issue, but neither conclusively determines whether a pro se lawyer is entitled to attorney fees.
In Parquit Corp. v. Ross, 273 Or 900, 543 P3d 1070 (1975), the contract specifically provided for recovery of attorney’s fees and costs incurred to enforce its provisions, and the prevailing defendant could have recovered his attorney’s fees from plaintiff. In Parquit, however, the defendant was a nonlawyer who represented himself. The Court therefore held that the defendant was not entitled to recover such fees. Notably, the Court did not discuss whether a lawyer who represented himself, and could show time spent on the matter (and therefore time spent away from other matters) would be entitled to such fees.
Later, in Pendell v. Dep’t of Revenue, 315 Or 608, 847 P2d 846 (1993), the Court relied on Parquit Corp. to hold that the tax court did not abuse its discretion in failing to award “attorney fees” to pro se taxpayers.
It doesn’t look like the lawyer sought review of this issue in Anderson, so we’ll have to wait and see whether the lawyers in Colby take this matter higher. I haven’t done a state-wide search on this issue, but would be interested to hear if other states address this issue differently.
UPDATE: See this post for a Washington case which holds that lawyers are entitled to attorneys fees when representing their own interests.Leave a Comment »