sunEthics

By Joseph A. Corsmeier, Esquire

    It is well established that a court may award attorneys’ fees if expressly permitted by statute, rule or contract. Also, an attorney may be required to personally pay attorneys’ fees as a sanction under Fla. Stat. sec. 57.105 and under various other state and federal rules and statutes. An issue that has resulted in conflict between the district courts of appeal is whether the trial court has inherent authority to sanction an attorney and require the attorney to personally pay fees for bad faith conduct in litigation.

    The Supreme Court of Florida in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002), decided the issue in the affirmative, while imposing certain requirements upon the court prior to imposing the sanctions personally upon the attorney. The Supreme Court opinion noted that the Third District Court of Appeal opinion in Moakley conflicted with the opinions of the Second District Court of Appeal in Israel v. Lee, 470 So.2d 861 (Fla. 2d DCA 1985) and the First District Court of Appeal in Miller v. Colonial Baking Co., 402 So.2d 1365 (Fla. 1st DCA 1981).

    The Moakley case arose out of post-dissolution proceedings afte the appeal court affirmed the imposition of attorneys’ fees against both Moakley, the former wife, and her attorney. The facts as found by the trial court were that Moakley’s attorney issued subpoenas for the former husband and two of his former attorneys in an attempt to compel production of an original note that had been awarded to the former wife in the final judgment of dissolution. In the motion to compel production, Moakley’s attorney conceded that one of the former husband’s attorneys, Smallwood, did not have the note and Smallwood testified to this under oath. Because of short notice, Smallwood was unable to attend the hearing on the motion to compel, which was held in a courthouse fifty miles from her office. The trial court subsequently ordered sanctions including attorneys’ fees against Moakley and her attorney. After finding that there was no reasonable explanation for the issuance of a subpoena to attorney Smallwood, the court’s order assessed attorney’s fees against both Moakley and her attorney as compensation for the time Smallwood spent responding to the subpoena. On appeal, the Third District affirmed the order finding that the trial court retained inherent authority to impose the sanctions against both Moakley and her attorney under those circumstances.

    The Moakley opinion noted that an attorney is not only a representative of the client, but also an officer of the court and subject to monetary sanctions personally for such bad faith conduct (citing Preamble to Rules of Professional Conduct, R. Regulating Fla. Bar ("A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice."))

    Although the opinion affirms the inherent power of the trial judge to order attorneys’ fees for bad faith conduct, it also states that the power must be used "sparingly and cautiously" and must balance the punishment of the attorney for engaging in unprofessional and unethical litigation tactics solely for bad faith purposes to ensure that attorneys are not deterred from pursuing legitimate purposes for their clients.

    The opinion further requires that the imposition of attorneys’ fees for bad faith conduct in litigation be based on an express finding of bad faith conduct and supported by detailed factual findings describing the specific acts that resulted in the unnecessary incurrence of attorneys’ fees. The factual findings must be highly specific and the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that were incurred because of the conduct. Finally, the trial court must afford the attorney an opportunity to be heard and present evidence and the court should rely on a specific statute or rule, if same applies, rather than its inherent authority. In quashing the trial court’s order assessing attorneys’ fees against Moakley’s attorney the opinion noted that the trial court made no express finding of bad faith conduct and did not provide the attorney with notice and an opportunity to be heard before imposing the sanction.

    It has now been clearly settled by the Florida Supreme Court in Moakley that a trial court has inherent authority to control the courtroom and impose attorneys’ fees and costs as a sanction against an attorney for bad faith conduct in litigation, however, the trial court is required to base the sanction on an express finding of bad faith conduct supported by highly specific and detailed factual findings describing the specific acts of bad faith conduct, the award must be directly related to the attorneys’ fees and costs expended by the opposing party because of the conduct, the trial court must give the attorney an opportunity to be heard and present evidence and witnesses and, if a specific statute or rule applies, the trial court must rely on it rather than its inherent authority.

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