Forcing Someone Else To Pay for Attorney’s Fees
When a Nonparty is Liable for Attorney’s Fees (Florida)
It is well known that in Florida, when a party files frivolous litigation, that party could be liable for attorney’s fees. See Florida Statute § 57.105 and Florida Statute § 772.11. Less known is that in some instances, the attorney or an unnamed party could be personally liable for those attorney’s fees.
How can an attorney become personally liable for these fees? If there is a frivolous lawsuit, § 57.105 splits the prevailing party’s fees between the attorney and the losing party. Under 57.105(1), a frivolous lawsuit is a lawsuit that:
- Was not supported by the material facts necessary to establish the claim or defense; or
- Would not be supported by the application of then-existing law to those material facts.
But what about a situation where that statute is inapplicable? That is a situation where a nonparty may be liable for attorney’s fees.
The Florida Statue for civil theft, § 772.11 allows recovery of attorney’s fees, but does not specifically make the attorney personally liable. To recover fees, the prevailing party must show that the civil theft suit “was without substantial fact or legal support.”
Courts can force an unnamed party to pay attorney’s fees if they exercise “control” over the litigation. In some situations, the unnamed party could be an attorney. Courts use a two-factor test, first was the unnamed party exercising “control” over the litigation? If so, is there a statute or theory that imposes automatic liability for attorney’s fees?
Some cases illustrating this doctrine include:
- Where a contract that gives the attorney the right to control litigation. See Visoly v. Security Pacific Credit Corp, 768 So. 2d 482 (Fla. 3d DCA 2000); Theller v. Hershey, 89 F. 575 (C.C.N.D. Cal. 1898).
- Where attorneys bring a lawsuit in the name of a corporation, without the corporation’s authorization. See Lage v. Blanco, 521 So. 2d 299 (Fla. 3d DCA 1988).
However, it is important to note that although courts have used § 57.105 and § 772.11 to hold the opposing counsel or an unnamed party personally liable for attorney’s fees, simply contributing to the finances of a party (such as via third party financing) does not make one liable for attorney’s fees. See Litchfield v. Crane, 123 U.S. 549 (1887); Miccosukee Tribe v. Bermmudez, 145 So. 3d 157 (Fla. 3d DCA 2014); Rumford Chem. Works v. Hygienic Chem. Co., 148 F. 862 (C.C.D. N.J. 1906).
Things to keep in mind:
- Do not file frivolous litigation
- An attorney can be personally liable for the prevailing party’s fees if there is a statute that imposes automatic liability.
- Do not exercise “control” over litigation that you are not part of (an unnamed party can be liable for attorney’s fees if that unnamed party exercises “control” over the litigation).
