Following the dismissal of the second case, Gray filed a motion for sanctions, including a request for attorney fees and costs. The trial court awarded Gray almost $10,000 in attorney fees on the basis that McCarthy’s filing violated Illinois’ corollary to Rule 11 of the Federal Rules of Civil Procedure.
The Illinois Court of Appeals affirmed the second dismissal but vacated the attorney fees award “on the basis that a pro se attorney is not entitled to receive attorney fees.” Gray appealed to the Illinois Supreme Court, which approved the award of fees. It found that a pro se attorney plaintiff had filed a frivolous lawsuit, and this justified the award of attorney fees. The punitive nature of the award was pivotal to the court’s rationale. The court found “[t]he essential underlying policy of [the frivolous litigation rule] of discouraging frivolous or harassing litigation is furthered by imposing sanctions in the form of an award of attorney fees in favor of a pro se attorney defendant against meritless claims.” But the decision was not unanimous. Two justices filed separate opinions that concurred in part and dissented in part.
How Does a Pro Se Attorney Incur Attorney Fees?
Some observers agree with the majority decision. “There is no real reason that simply because you are an attorney, you should forego the opportunity to obtain attorney fees,” says Brian A. Berkley, Philadelphia, PA, cochair of the Section of Litigation’s Business Torts & Unfair Competition Committee. “Our time is valuable and simply because you are the client, that does not make it any less valuable.”
One dissenting opinion agreed with this sentiment, but noted the pro se attorney defendant could receive reasonable expenses in the form of “loss of income attributable to the time he spent away from his practice defending against this frivolous lawsuit.” Other Section leaders agree with the dissent’s additional point that no attorney-client relationship was formed, and so no attorney fees should be granted. “I would have never thought to go after my attorney fees,” says Tracy A. DiFillippo, Reno, NV, cochair of the Section of Litigation’s Pretrial Practice & Discovery Committee. “I guess you charge yourself?” she asks.
A Slippery Slope?
Another dissenting opinion questioned basing the decision on the intention of the Rule 11 statute. This dissent noted it was difficult to distinguish between the intention behind allowing attorney fees in the frivolous lawsuit context versus other fee-shifting regimes. DiFillippo agrees, observing that the majority opinion opens the door for attorneys to seek more novel ways to earn attorney fees in cases where they would not otherwise receive compensation for work they perform.
“It is just strange,” opines DiFillippo. “You will have a lot more attorneys testing the waters and looking at different rules, statutes, and contracts that allow attorney fees.”
For Berkley, it comes down to a party’s right to choose its own representation for specific litigation and not losing remedies as a result of the selection. In Berkley’s view, “If I start getting penalized for doing that, it becomes problematic.”
NOTE: The Supreme Court of Illinois made minor revisions to its original opinion following a Motion for Rehearing in October 2019. The final opinion, therefore, has yet to be released and the opinion remains subject to revision or withdrawal.