In Nunez v. Allen (Fla. 5th DCA Oct. 11, 2019), the Fifth District Court of Appeal held that an attorney representing himself is entitled to an award of his own attorney’s fees pursuant to a proposal for settlement. However, the attorney’s legal fees must reflect time reasonably spent on actual legal services, and must not be duplicative of time spent by co-counsel. Furthermore, Fifth DCA ruled that the reasonableness of an attorney fee award may be independently evaluated on appeal.
This case arose from simple facts: a vehicle driven by one defendant struck a parked, unoccupied vehicle owned by the plaintiff. The plaintiff sued the driver, as well as the driver’s father who owned the vehicle. The plaintiff served separate proposals for settlement on each defendant. The question of whether the proposals for settlement were unenforceable due to ambiguity ultimately was decided by the Florida Supreme Court. As I wrote in a previous article, the Florida Supreme Court held that the proposals were enforceable.
On remand, the Fifth DCA addressed the remaining issues not resolved by the supreme court’s decision: whether the plaintiff was entitled to an attorney’s fee award for his own self-representation, and whether the trial court’s fee award was unreasonable under the evidence.
The plaintiff is “a very experienced, competent civil trial lawyer,” and represented himself throughout the majority of the litigation, including after he retained co-counsel to assist him. The defendants argued that the plaintiff should not be awarded attorney’s fees for his own self-representation.
The defendants recognized that Florida law has long allowed attorneys representing themselves to seek an attorney’s fee award if fees would be recoverable by the same party if represented by independent counsel. However, the defendants sought reconsideration of the issue in light of a United States Supreme Court decision that held that attorneys representing themselves in civil rights actions could not be awarded their own attorney’s fees.
In a 1991 decision, the United States Supreme Court held that attorney’s fees awards for self-representation were contrary to the policy of the civil rights statute. The Supreme Court held that the purpose of allowing attorney’s fee awards in civil rights cases was to enable potential plaintiffs to obtain the assistance of competent counsel to vindicate their rights. Thus, allowing self-represented attorneys to claim their own attorney’s fees would create a disincentive to employ independent counsel.
In this case, the Fifth DCA held that the purpose of the proposal for settlement statute and rule is far different. The purpose of a proposal for settlement is to penalize a party who rejects a reasonable settlement offer, rather than to encourage a party to obtain the advice of independent counsel.
The defendants also argued that the plaintiff was not entitled to an attorney’s fee award for his own representation for any work performed after he retained co-counsel. They argued that a fee award was improper because the attorney had then shifted from being the attorney to being the client. The Fifth DCA rejected that argument. However, it held that fees for an attorney’s own services must be limited to actual legal services performed by the party-attorney, rather than time expended in the attorney’s capacity as a client. Furthermore, fees awarded to a party-attorney must be carefully analyzed to avoid duplication of time expended by co-counsel.
The defendants did prevail, however, on their argument that the attorney’s fee award in the case was unreasonable. The opinion first noted that in attorney’s fees cases, an appellate court has a “special responsibility” to closely scrutinize the reasonableness of attorney’s fee awards, irrespective of the “expert” opinions presented in the trial court.
The trial court awarded a total of $343,590.00 in attorney’s fees in the case, for 694.6 hours in attorney and paralegal time. Given that the case was not novel or complex, and the modest amount of the damages, the trial court’s award of attorney’s fees was clearly unreasonable and constituted an abuse of discretion.
Therefore, the Fifth DCA reversed the attorney’s fee award, and remanded the case to the trial court for a redetermination of the attorney’s fee award.