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May 01, 2020 Feature

Attorney Fees as Sanctions

Steven K. Yoda

Aside from need-based attorney fees, many states separately permit attorney fees to be awarded as a form of monetary sanctions against truculent parties. Section 271 of California’s Family Code, for example, permits courts to award attorney fees when “the conduct of [a] party or attorney . . . frustrates the policy of the law to promote settlement . . . and . . . to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” Rule 130-1.1 of New York’s Administrative Rules of the Unified Court System & Uniform Rules of the Trial Courts permits courts to award attorney fees “resulting from frivolous conduct.” “Frivolous conduct” includes conduct “undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another.” In Texas, although there is no specific statute authorizing the award of attorney fees as a form of sanctions, courts possess the inherent authority to do so. (See Kutch v. Del Mar College, 831 S.W.2d 506, 509 (Tex. App. 1992) (“Texas courts have inherent power to sanction for bad faith conduct during litigation”).) Most states also have specific discovery statutes permitting awards of attorney fees as a form monetary sanctions for discovery violations.

Determining what does (or does not) constitute sanctionable conduct in any given case rests within the sound discretion of the court. A survey of the case law, though, illustrates the types of conduct that has been sanctioned in the past and provides guidance on the types of practices to avoid. Parties have been sanctioned for:

  • attempting to hide assets or obfuscate financial transactions (see, e.g., In re Marriage of Feldman, 153 Cal. App. 4th 1470 (2007); Liston v. Liston, 269 P.3d 169 (Utah Ct. App. 2011));
  • failing to produce documents and cooperate in discovery (see, e.g., In re Marriage of Sorge, 202 Cal. App. 4th 626 (2012); Ramin v. Ramin, 915 A.2d 790 (Conn. 2007); Reynolds v. Reynolds, 64 N.E.3d 829 (Ind. 2016); In re Marriage of Lindeman, 140 S.W.3d 266 (Mo. Ct. App. 2004); Hein v. Hein, 717 A.2d 1053 (Pa. Super Ct. 1998));
  • fabricating evidence or testimony (see, e.g., In re Marriage of Tharp, 188 Cal. App. 4th 1295 (2010); Zatzkis v. Zatzkis, 632 So. 2d 302 (La. Ct. App. 1993));
  • taking frivolous legal positions (see, e.g., In re Marriage of Falcone & Fyke, 164 Cal. App. 4th 814 (2008); In re Marriage of Burgard, 72 Cal. App. 4th 74 (1999));
  • failing to comply with court orders or judgments (see, e.g., Saganowski v. Kekoa, 6 Cal. App. 5th 1142 (2016); In re Marriage of Greenberg, 194 Cal. App. 4th 1095 (2011); In re Marriage of Hargrave, 36 Cal. App. 4th 1313 (1995));
  • making bad-faith, one-sided settlement offers (see, e.g., In re Marriage of Abrams, 105 Cal. App. 4th 979 (2003));
  • being unprepared at a hearing (see, e.g., Anderson v. Anderson, 2010 WL 5550424 (Utah Ct. App. Dec. 30, 2010));
  • proliferating a multiplicity of actions (see, e.g., Burkle v. Burkle, 144 Cal. App. 4th 387 (2006)); and
  • being unprofessional and rude (see, e.g., In re Marriage of Davenport, 194 Cal. App. 4th 1507 (2011); In re Marriage of Daniels, 19 Cal. App. 4th 1102 (1993)).

Of course, these are not discrete categories. Unprofessional conduct can span several of these categories. For example, failing to comply with court-ordered discovery is not only unprofessional, but it violates a court order and can constitute an effort to hide assets. Regardless, sharp practices such as those listed above should be avoided.

Perhaps the best way to think about these rules is not as negative proscriptions against unprofessional conduct. Rather, they might be better considered in light of their underlying policy, which is to positively promote professionalism and cooperation between the parties in family law cases. As family lawyers, we occupy a very unique space within the legal profession. We are privileged (perhaps more than any other lawyers) to handle some of the most personal, private, and sensitive issues in the lives of our clients. Even though emotions tend to run high in family law cases, we get to help our clients, who are going through very difficult times, shape the future of their familial relations. In this sense, these rules articulate a normative policy about how family law cases should be managed, how family law litigants should relate to one another, and how we family lawyers should relate to one another. These rules, in other words, set forth an aspirational goal—or, at least, a minimum floor—for civility and professionalism in family law cases. This helps to remind us about how lucky we are to do the work that we do for our clients.

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Steven K. Yoda is a partner at Walzer Melcher LLP in Los Angeles, California, where he specializes in complex family law litigation. He has been recognized as a “Super Lawyer” and “Rising Star” by Super Lawyers magazine and has been individually ranked as a top family law attorney in California by Chambers and Partners and Lawdragon. The National Asian Pacific American Bar Association also has recognized Steve as a “Best Lawyer Under 40.” Steve is a graduate of Stanford University and Berkeley Law.