GERALD S. McCARTHY, Appellee, v. ROZLYN TAYLOR et al. (Marvin Gray, Appellant).
No. 123622
Supreme Court of Illinois
June 20, 2019
Modified upon denial of rehearing October 1, 2019
2019 IL 123622
JUSTICE KILBRIDE delivered the judgment of the court, with opinion. Justices Thomas, Burke, and Theis concurred in the judgment and opinion. Chief Justice Karmeier concurred in part and dissented in part, with opinion. Justice Garman concurred in part and dissented in part, with opinion. Justice Neville took no part in the decision.
Illinois Official Reports. Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Kathleen M. Pantle, Judge, presiding.
Decision Under Review: Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Kathleen M. Pantle, Judge, presiding.
Judgment: Affirmed in part, reversed in part, and remanded with directions.
Counsel on Appeal: Marvin Gray, of Chicago, appellant pro se.
Tanya D. Woods, of Chicago, for appellee.
¶ 1 In this appeal, we address, as a matter of first impression, whether a court may impose sanctions in the form of attorney fees under
¶ 2 Plaintiff, Gerald S. McCarthy, filed a complaint against defendant, Marvin Gray. Plaintiff‘s complaint was dismissed, and the Cook County circuit court entered an order imposing
BACKGROUND
¶ 3 ¶ 4 In 2006, Abraham Lincoln Reynolds III created and executed the “A. L. Reynolds III 2006 Declaration of Living Trust,” naming himself as the trustee. Cherie Coles, the romantic interest of Reynolds, was named as successor trustee. Plaintiff was appointed as the second successor trustee. The trust granted 10% of the residuary estate to plaintiff, 80% to Coles, and 10% to Elaine Lawell. If Coles predeceased Reynolds, however, her 80% share would go to plaintiff, and plaintiff‘s 10% share “shall [be] extinguished and be given to Reverend Wayne Reynolds, Senior.” The schedule of property attached to the trust document included bank accounts, savings bonds, a “1996 Mercury Grand Marquee [sic]” automobile, personal and household items, and a condominium apartment located in Chicago. Defendant was Reynolds‘s attorney who prepared the trust document.
¶ 5 Coles passed away in 2007. In 2010, Reynolds executed an amendment to the trust clarifying and augmenting the power
¶ 6 Reynolds committed suicide on December 15, 2012. Defendant contacted plaintiff after Reynolds‘s death and notified him that Reynolds had amended the trust before his death. Defendant informed plaintiff that Reynolds came to defendant‘s home prior to his suicide and presented defendant with an amended trust document he “had made in his own handwriting.” The amendments named Rozlyn Taylor as successor trustee. Reynolds and Taylor had become intimately involved after Coles‘s death. The amendments granted 20% of the residuary estate to plaintiff, 70% to Taylor, and 10% to Devon Morris. The schedule of property was amended to delete certain bank accounts and savings bonds as “gone” and added new bank and individual retirement accounts. The schedule of property also substituted a 1998 Oldsmobile for the 1996 Mercury.2
¶ 7 Plaintiff filed a pro se complaint in 2013, in another action that is not the subject of this appeal, alleging that Reynolds‘s amendment to the trust was invalid. Defendant testified as a witness at the trial. The circuit court ruled against plaintiff, finding that Reynolds‘s handwritten amendment to the trust naming Taylor as the successor trustee was valid. The appellate court affirmed. McCarthy v. Taylor, 2014 IL App (1st) 132239. On September 26, 2014, plaintiff filed a petition for leave to appeal with this court. We denied leave to appeal. McCarthy v. Taylor, No. 118293 (Ill. Nov. 26, 2014).
¶ 8 On June 9, 2014, plaintiff filed a pro se five-count complaint, the subject of this appeal, against Taylor, in her capacity as trustee and individually, and defendant. In relevant part, plaintiff presented two counts against defendant: (1) alleging defendant breached his fiduciary duty to plaintiff as a beneficiary of the trust and (2) alleging defendant tortiously interfered with plaintiff‘s share of the trust by making false statements and presenting misleading evidence against him in the 2013 case. In response, defendant filed a combined motion to dismiss pursuant to
¶ 9 On February 27, 2015, the circuit court dismissed plaintiff‘s tortious interference claim with prejudice pursuant to
¶ 10 On March 27, 2015, plaintiff filed an amended complaint containing one count against defendant for breach of fiduciary duty. Plaintiff alleged defendant had a duty to act with due care in providing
“McCarthy has not alleged any facts which would establish that Gray owed him a fiduciary duty. McCarthy has cited no legal authority for the proposition that a trust attorney owes a fiduciary duty to the trust‘s beneficiaries as a matter of law. Since McCarthy and Gray were not otherwise in privity, McCarthy would need to allege facts which would show his eligibility for an exception to the rule. However, McCarthy has failed to allege facts to support that any contract was entered into for his benefit, or the benefit of all the beneficiaries. Since McCarthy has failed to make any more than a bare-bones assertion that a fiduciary duty exists, he has not alleged the essential elements of his cause of action.”
¶ 11 Defendant then filed a motion seeking sanctions under
¶ 12 The circuit court entered an order granting in part and denying in part defendant‘s motion for
¶ 13 Plaintiff appealed, contending that the circuit court erred in dismissing his tortious interference claim based on res judicata and issuing
¶ 14 The appellate court affirmed the dismissal of plaintiff‘s tortious interference claim and its finding that plaintiff violated
ANALYSIS
¶ 15 ¶ 16 Defendant, proceeding pro se, has elected to allow his petition for leave to appeal to stand as his brief in this case.
¶ 17 The issue in this appeal is whether a court may impose sanctions in the form of attorney fees under
¶ 18
“Every pleading, motion or other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or in a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee.” (Emphasis added.)
Ill. S. Ct. R. 137(a) (eff. July 1, 2013).
¶ 19 The plain language of
¶ 20 Nothing in the plain language of
¶ 21 In this case, the appellate court relied on this court‘s decision in Hamer v. Lentz, 132 Ill. 2d 49 (1989), to conclude that the circuit court did not have authority to grant attorney fees as a remedy under
¶ 22 In Hamer, we recognized that the purpose of the fee-shifting provision of the Illinois FOIA is to ensure its enforcement, and that “is accomplished by removing the burden of legal fees, which might deter litigants from pursuing legitimate FOIA actions.” Hamer, 132 Ill. 2d at 61-62. We explained that the fee-shifting provision was not “intended as either a reward for successful plaintiffs or as a punishment against the government” and that “legal fees do not present a barrier to a pro se lawyer seeking to obtain information.” Hamer, 132 Ill. 2d at 62. We also recognized that one of the goals of the Illinois FOIA fee-shifting provision “is to avoid unnecessary litigation by encouraging citizens to seek legal advice before filing suit.” Hamer, 132 Ill. 2d at 62. Additionally, we also opined that “[t]he most effective way to deter abusive fee generation” by unscrupulous lawyers “is to deny fees to lawyers representing themselves.” Hamer, 132 Ill. 2d at 62-63.
¶ 23 The appellate court acknowledged that there was no Illinois case law applying Hamer to a
¶ 24 The appellate court reasoned that
¶ 25 Following the appellate court‘s decision in this case, and while this appeal was pending, this court issued another decision that relied on the rationale in Hamer. See State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487. In My Pillow, this court held a law firm that brought a qui tam claim under the Illinois False Claims Act (
¶ 26 In My Pillow, we recognized that in Willard v. Bassett, 27 Ill. 37 (1861), our court expressly rejected the notion that an attorney who represents himself or herself in a legal proceeding may charge a fee for professional services in prosecuting or defending the case. My Pillow, 2018 IL 122487, ¶ 22. In Willard, the issue concerned whether an attorney, who is the administrator of an estate, is entitled to an allowance against the estate for his professional services. The court recognized in Willard that the attorney was entitled to reasonable compensation for administering the estate but that he was not entitled to an additional fee for legal services rendered by him. Willard, 27 Ill. at 38. My Pillow quoted Willard‘s rationale:
” ‘To allow him to become his own client and charge for professional services in his own cause, although in a representative or trust capacity, would be holding out inducements for professional men to seek such representative place[s] to increase their professional business, which would lead to most pernicious results. This is forbidden by every sound principle of professional morality as well as by the policy of the law.’ ” My Pillow, 2018 IL 122487, ¶ 22 (quoting Willard, 27 Ill. at 38).
¶ 27 My Pillow recognized that “our court has continued to adhere to the principle
¶ 28 We find that Hamer and its progeny are distinguishable because those cases did not involve
¶ 29 The policy considerations underlying our decisions in Hamer and My Pillow on fee-shifting provisions are not present when a court awards sanctions under
¶ 30 Other courts addressing this issue have similarly held that a pro se attorney defendant may be awarded attorney fees as part of a sanction for efforts in defending against a frivolous complaint. See Burke v. Elkin, 51 N.E.3d 1287, 1288 (Ind. Ct. App. 2016) (holding that, “[d]espite the American Rule, *** a party to a civil action may recover attorney fees incurred defending against a frivolous action or an action litigated in bad faith” and recognizing that Indiana had adopted the majority rule permitting an attorney representing himself to recover an award of attorney fees for time and effort spent defending against a frivolous lawsuit); Stiles v. Kearney, 277 P.3d 9 (Wash. Ct. App. 2012), review denied, 287 P.3d 11 (Oct. 10, 2012) (table) (pro se defendant who is an attorney can receive attorney fees for his effort in defending against complaint as part of sanction imposed against plaintiff for violation of rule in filing lawsuit); Keaty v. Raspanti, 2003-1080, p. 8 (La. App. Cir. 2/4/04); 866 So. 2d 1045 (“To hold that an attorney who must defend himself or herself cannot recover reasonable attorney‘s fees, including his or her own lost time and expenses in defending himself or herself [against frivolous litigation], would frustrate the purpose of the statute [to deter frivolous litigation] and possibly reward those who persist in maintaining litigation such as that found in this case.“); Friedman v. Backman, 453 So. 2d 938 (Fla. Dist. Ct. App. 1984) (pro se defendant lawyer is entitled to attorney fees under statute allowing sanctions against plaintiff for filing frivolous pleadings). We find these cases persuasive.
¶ 31 We reiterate that “[t]he purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions.” Sundance Homes, 195 Ill. 2d at 286. To hold that an attorney cannot recover reasonable attorney fees in defending himself against frivolous litigation would clearly frustrate the purpose of
¶ 32 We hold that, under
¶ 33 In his prayer for relief on his petition for leave to appeal, defendant also requests that this court impose sanctions against plaintiff under
III. CONCLUSION
¶ 34 ¶ 35 For the above reasons, we reverse that part of the appellate court judgment vacating Gray‘s attorney fee award and
¶ 36 Affirmed in part, reversed in part, and remanded with directions.
¶ 37 CHIEF JUSTICE KARMEIER, concurring in part and dissenting in part:
¶ 38 I agree with Justice Garman‘s analysis insofar as she concludes that an award of “attorney fees” is inappropriate in this circumstance because there is no attorney-client relationship and thus no “attorney fees” have been incurred. I also agree with her assessment of what the majority is actually trying to accomplish: “[G]iven that a pro se attorney does not incur legal fees, the majority is essentially awarding ‘attorney fees’ to defendant to ‘compensate’ him, not for the fees he incurred to obtain legal representation, but for the opportunity costs he chose to forgo.” Infra ¶ 64. Without going further, Justice Garman would apparently leave a pro se defendant to bear the brunt of a plaintiff‘s abusive litigation without recompense and allow the plaintiff to benefit from a defendant‘s decision to proceed pro se. That outcome seems to me inconsistent with the purpose and language of the rule; that is the result the majority is straining to avoid. “The purpose of Rule 137 is to prevent abuse of the judicial process by penalizing claimants who bring vexatious and harassing actions.” Sundance Homes, Inc. v. County of Du Page, 195 Ill. 2d 257, 285-86 (2001); see
¶ 39
“According to Black‘s Law Dictionary, ‘include’ means:
‘To contain as a part of something. The participle including typically indicates a partial list <the plaintiff asserted five tort claims, including slander and libel>. But some drafters use phrases such as including without limitation and including but not limited to—which mean the same thing.’ (Emphases in original.) Black‘s Law Dictionary 777-78 (8th ed. 2004).
The law dictionary refers the reader to the term ‘namely,’ which means:
‘By name or particular mention; that is to say <the plaintiff asserted two claims, namely wrongful termination and slander>. The term indicates what is to be included by name. By contrast, including implies a partial list and indicates that something is not listed.’ (Emphasis in original.) Black‘s Law Dictionary 1049 (8th ed. 2004).
Similarly, the editor of Black‘s Law Dictionary observes in another work that:
‘[I]ncluding is sometimes misused for namely. But it should not be used to introduce an exhaustive list, for it implies that the list is only partial. In the words of one federal court, “It is hornbook law that the use of the word including indicates that the specified list ... is illustrative, not exclusive.” Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981).’ (Emphases in original.) B. Garner, A Dictionary of Modern Legal Usage 431 (1995).”
¶ 40 Clearly, the listing of “reasonable expenses” and “attorney fees” in the rule was not meant to be exhaustive. Indeed, if the drafters of the rule had intended only “reasonable expenses” and “attorney fees” incurred, the phrase “appropriate sanctions” would be superfluous. When interpreting supreme court rules, we are guided by the same principles applicable to the construction of statutes, and that being the case, we are here obliged to avoid a construction that renders a part of the rule superfluous or redundant and instead presume that each part of the rule has meaning. See People v. Salem, 2016 IL 118693, ¶¶ 11, 16.
¶ 41 If the phrase “appropriate sanctions” is to encompass something more than “reasonable expenses” and “attorney fees,” and as the point of the rule is to punish the plaintiff by compensating the defendant for the costs of defending a frivolous suit, the defendant‘s loss of income attributable to that defense would reasonably be included within the ambit of “appropriate sanctions.” Discretionary imposition of that element of cost upon a plaintiff who has initiated and perpetuated abusive litigation, as a means to make an innocent defendant whole—be that defendant an attorney, doctor, mechanic, or a practitioner of any other vocation—would seem to be a reasonable application of the rule. Interpreting the rule in this manner validates the language of the rule and advances its purpose as well. To do otherwise would allow an abusive plaintiff to benefit from a defendant‘s decision to proceed pro se and limit the circuit court‘s ability to mete out egalitarian justice to those who may well be without the means to hire an attorney.3
¶ 43 I would reverse the judgment of the appellate court and remand this cause to the appellate court for consideration of defendant‘s request for
¶ 44 JUSTICE GARMAN, concurring in part and dissenting in part:
¶ 45 The majority concludes, as a matter of first impression, that a court may impose sanctions in the form of attorney fees under
¶ 46 First, as this court explained in State ex rel. Schad, Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487, ¶ 34, “the real question before us is not what the law should permit but rather what the law, as written, does permit.”
“Applying such a construction to
section 4(d)(2) of the Act , we see nothing therein to suggest that when the General Assembly authorized recovery of ‘reasonable attorneys’ fees and costs’ in qui tam actions, it intended to change the established common-law rule in Illinois that litigants who choose to represent themselves rather than retain counsel incur no compensable attorney fees even if they are themselves lawyers and even if they have brought the action on behalf of their own law firm.” Id.
¶ 47 Here, the majority attributes little value to the fact that, for over 150 years, pro se attorneys have not been permitted to obtain attorney fees for their own work. See id. ¶ 22. Accordingly, if the drafters intended the term “attorney fees”5 to be interpreted more broadly, i.e., to apply in the context of
¶ 48 Second, the majority dismisses the appellate court‘s reasoning because it relied upon cases involving fee-shifting provisions. The majority also states that the “concern articulated in Hamer and My Pillow on deterring abusive fee generation by lawyers who initiate litigation is not present.” Supra ¶ 29; see Hamer v. Lentz, 132 Ill. 2d 49 (1989); My Pillow, 2018 IL 122487. Interestingly, however, the appellate court based its holding upon other policy reasons: (1) that the potential to recover attorney fees enables potential plaintiffs to obtain competent and independent counsel and, in a similar vein, an attorney who proceeds pro se is deprived of independent judgment; (2) that, in Kay v. Ehrler, 499 U.S. 432, 437 n.7 (1991), the United States Supreme Court indicated in a footnote that the existence of an attorney-client relationship is critical in establishing an objective assessment of meritorious claims; (3) that, “as in Hamer, courts consistently have considered the fact that pro se attorneys are not burdened by legal fees, such that the fees create a barrier to seeking representation“; and (4) that “courts have highlighted that nonattorney pro se litigants are not entitled to fees for the time they spend litigating their own cases; therefore, pro se attorneys should not be treated differently.” McCarthy v. Abraham Lincoln Reynolds, III, 2006 Declaration of Living Trust, 2018 IL App (1st) 162478, ¶ 30.
¶ 49 It is not made clear in the majority opinion how not one of the enumerated policy reasons above carry over, in whole or in part, to the
¶ 50 Third, and in connection with my first concern, Hamer and My Pillow both clearly observed that a pro se attorney does not incur legal fees. Hamer, 132 Ill. 2d at 62 (“A lawyer representing himself or herself simply does not incur legal fees.“); My Pillow, 2018 IL 122487, ¶ 31 (“in this case, there was nothing that could fairly be characterized as an attorney-client relationship from which an obligation or need to pay an attorney fee might arise“). Courts and litigants are left with no explanation as to how pro se attorneys incur or become liable to pay attorney fees in the
¶ 51 Fourth, the majority defers to out-of-state case law holding “that a pro se attorney defendant may be awarded attorney fees as part of a sanction for efforts in defending against a frivolous complaint.” Supra ¶ 30; see Burke v. Elkin, 51 N.E.3d 1287 (Ind. Ct. App. 2016); Stiles v. Kearney, 277 P.3d 9 (Wash. Ct. App. 2012); Keaty v. Raspanti, 2003-1080, p. 8 (La. App. Cir. 2/4/04); 866 So. 2d 1045; Friedman v. Backman, 453 So. 2d 938 (Fla. Dist. Ct. App. 1984). I do not find these cases persuasive.
“the majority rule permits an attorney representing himself to recover an award of attorney‘s fees for his time and effort in defending a frivolous lawsuit. Friedman v. Backman, 453 So. 2d 938 (Fla.App. 1984); Quick & Reilly, Inc. v. Perlin, 411 So. 2d 978 (Fla.App. 1984). The rationale of this rule is, ‘as the saying goes, “a lawyer‘s time and advice are his stock in trade.” ’ Friedman, 453 So.2d at 938.” Id.
¶ 53 In Marion County Election Board v. Bowes, 53 N.E.3d 1203 (Ind. Ct. App. 2016), the Indiana Court of Appeals held that a pro se attorney was not entitled to recover attorney fees or litigation expenses under the Indiana Access to Public Records Act for missed work and other employment opportunities. Marion County Election Board v. Bowes, 53 N.E.3d 1203 (Ind. Ct. App. 2016). Marion reasoned,
“despite prevailing on the merits, Bowes is not entitled to recover attorney fees as there are none to recover. Even if a pro se litigant happens to be a lawyer, no attorney fees are earned unless independent counsel is engaged. As the United States Supreme Court recognized in Kay, ‘the word “attorney” assumes an agency relationship,’ one that cannot exist between an appellant and himself. [Citation.] The Kay Court highlighted the point by noting several definitions of the word ‘attorney,’ all of which emphasize the agency aspect[.]” Id. at 1207.
¶ 54 Nonetheless, the pro se attorney in Marion argued in part that he was entitled to attorney fees based on the court‘s earlier decision in Ziobron. Id. at 1209. Though it did not overrule Ziobron, Marion called Ziobron‘s reasoning into question by noting that
“[a]lthough another panel of this Court awarded attorney fees in Ziobron, we first disagree with the Ziobron Court‘s characterization of Ziobron‘s potential compensation as ‘attorney‘s fees.’ [Citation.] Again, use of the word ‘attorney’ indicates an agency relationship between lawyer and client, which did not exist in Ziobron.” Id.
¶ 55 Moving on, the majority cites Stiles v. Kearney, 277 P.3d 9 (Wash. Ct. App. 2012). There, the Washington Court of Appeals relied on its decision in Leen v. Demopolis, 815 P.2d 269 (Wash. App. 1992), which held that an attorney appearing pro se could recover attorney fees because pro se attorneys must take time from their practices to prepare and appear just like any other attorney. Stiles, 277 P.3d at 16 (citing Leen, 815 P.2d at 277). In Stiles, the Washington Court of Appeals rejected the argument that it should instead follow Kay, reasoning that Kay was distinguishable, as it involved the Civil Rights Attorney‘s Fees Awards Act of 1976 (
¶ 56 As to Keaty, a Louisiana Court of Appeal observed in a footnote that:
“We note that to permit a lawyer to recover his or her fees representing himself or herself in a case for article
863 sanctions while not permitting a non-lawyer to recover the time and expenses that he or she has incurred while defending a sanctionable pleading, may seem unfair. That issue is not before us and is reserved for another day; however, we do not read article 863 as prohibiting a non-lawyer from recovering his or her lost time and expenses in an article 863 matter.” Keaty, 2003-1080, p. 8 n.6; 866 So. 2d 1045.
¶ 57 Though dicta, Keaty clearly acknowledged that its holding could be perceived as unjust. Keaty also did not explain how its reading of article 863 could be such that a pro se nonlawyer could recover attorney fees.
¶ 58 Finally, the majority cites Friedman v. Backman, 453 So. 2d 938 (Fla. Dist. Ct. App. 1984). Friedman stated that it seemed logical to award attorney fees to a pro se attorney because, “as the saying goes, ‘a lawyer‘s time and advice are his stock in trade.’ ” Id. at 938.
¶ 59 The clear theme running through these cases is the belief that a pro se attorney should be compensated for the time spent being “forced to defend” against a frivolous action. I disagree with this line of reasoning for several reasons.
¶ 60 Most importantly, the majority‘s holding impermissibly carves out a special exception for attorneys. Hamer observed that other courts, concluding that pro se lawyers in Freedom of Information Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.) cases are not permitted to obtain attorney fees, observed that there is ” ‘no good reason for treating pro se lawyers any differently than pro se laypersons.’ ” 132 Ill. 2d at 58 (quoting Aronson v. United States Department of Housing & Urban Development, 866 F.2d 1, 5 (1st Cir. 1989)); Falcone v. Internal Revenue Service, 714 F.2d 646, 647 (6th Cir. 1983). Although Hamer declined to address this consideration, I believe that this matter deserves due consideration, as the majority now concludes—for the first time—that a pro se attorney is entitled to attorney fees. See Hamer, 132 Ill. 2d at 58-59 (“Whether a nonlawyer pro se litigant may recover attorney fees under the Illinois FOIA is a question that is not before us, and we express no opinion on the matter.“).
¶ 61 As Aronson noted:
“Nor are we impressed by the argument that a pro se lawyer should be awarded fees because of the time he/she must spend on the case. The inference is that the time so spent means the sacrifice of fees he/she would otherwise receive. But a lay pro se must also devote time to the case. If such a litigant is a professional person, such as an author, engineer, architect, etc. the time expended may also result in loss of income. Lawyers are not the only persons whose stock in trade is time and advice.” 866 F.2d at 5.
¶ 62 Additionally, Aronson accurately observed that it would be unseemly to treat pro se lawyers differently from pro se nonattorneys, because to allow the former but not the latter to recover fees creates the appearance that courts are “especially solicitous for the economic welfare of lawyers.” Id. at 6 (“This is not the type of image that enhances public respect for the bar or judiciary.“); see also Frison v. Mathis, 981 A.2d 57, 63 (Md. Ct. Spec. App. 2009) (“Requiring that an attorney-client relationship exist before allowing the recovery of attorney fees avoids the public perception of unfairness in the legal system.“); Trope v. Katz, 902 P.2d 259, 262 (Cal. 1995) (otherwise, it “would in effect create two separate classes of pro se litigants—those who are attorneys and
¶ 63 The majority observes that defendant was “forced to defend” and “forced to expend his time defending” against the frivolous claim. Supra ¶¶ 28-29. But this characterization holds true for a pro se nonattorney defendant as well. In both circumstances, a frivolous action is being brought against both types of pro se parties. And both a pro se nonattorney defendant and a pro se attorney defendant are exercising the choice to defend against frivolous claims pro se and, as a result, are forgoing the opportunity to spend their time otherwise, e.g., representing clients, treating patients, etc. Yet, to be eligible for attorney fees, the nonattorney is forced to incur a “potential out-of-pocket obligation” by retaining counsel, whereas the pro se attorney would not. See Swanson & Setzke, Chtd. v. Henning, 774 P.2d 909, 913 (Idaho Ct. App. 1989).
¶ 64 Because
¶ 65 For these reasons, I respectfully dissent.
¶ 66 JUSTICE NEVILLE took no part in the consideration or decision of this case.