• Pro Se Attorney Litigants May Not Recover Attorney's Fees in Maryland
  • November 6, 2009 | Authors: Kevin Cox; Paul N. Farquharson
  • Law Firm: Semmes, Bowen & Semmes, A Professional Corporation - Baltimore Office
  • Frison v. Mathis, No. 2967 (Md. App. October 1, 2009)

    The Appellant, E. Scott Frison, Jr., represented the Appellee, Jerry J. Mathis in a lawsuit filed against him. The jury awarded judgment to Mr. Hargrove in the amount of $142,000, and Mr. Mathis refused to pay Mr. Frison for his legal fees incurred during the lawsuit. Mr. Mathis claimed that Mr. Frison had committed errors in the trial that resulted in an unfavorable disposition; therefore, Mr. Frison filed suit, pro se, to collect his legal fees. A jury returned a verdict in his favor for $35,818.13, and Mr. Frison filed a motion for attorney's fees, alleging "willful and intentional violations of MD. RULE 1-341." The Circuit Court for Prince George's County denied Mr. Frison's request, concluding that he was ineligible to recover attorney's fees pursuant to RULE 1-341 because he represented himself pro se.

    Mr. Frison's requested $57,900 in attorney's fees for 253 hours of work, asserting that the time he spent responding to the bad faith filings by Mr. Mathis interfered with other potential work that he could have undertaken. Some of the time spent by Mr. Frison on these bad faith filings referred to Mr. Mathis pursuing an appeal of the jury verdict awarding Mr. Frison $35,818.13 in attorney's fees. The Circuit Court for Prince George's County denied Mr. Frison's motion for attorney's fees stating that if an attorney represents him or herself pro se, then he or she cannot recover attorney's fees. In an issue of first impression, the Court of Special Appeals decided whether a pro se attorney litigant can recover attorney's fees.

    On appeal, Mr. Frison simply argued that his circumstances were different from previous cases holding that attorney's representing themselves are not entitled to an award of attorney's fees. Mr. Frison contended that the circumstances of his case were different because his was an action to enforce a judgment for attorney's fees against a former client. Mr. Mathis, however, argued that an attorney representing himself, pro se, is simply not entitled to attorney's fees. Moreover, Mr. Mathis contended that the specific language of RULE 1-341 authorizes attorney's fees only for fees actually "incurred," and that Mr. Frison, representing himself, did not incur attorney's fees. The Court of Special Appeals agreed with Mr. Mathis and found that a pro se attorney litigant is not entitled to recover attorney's fees pursuant to RULE 1-341 for two reasons. First, previous case law has held that a pro se litigant is not entitled to recover attorney's fees, and the analysis of those cases is applicable to a request for attorney's fees pursuant to RULE 1-341. Second, the plain language of RULE 1-341 limits attorney's fees recoverable only to those incurred. Simply put, a pro se attorney litigant cannot "incur" any actual expenses in the nature of attorney's fees. In addition, the Court of Special Appeals found support in other jurisdictions providing that reasonable attorney's fees incurred does not authorize the recovery of attorney's fees by pro se attorney litigants.

    Mr. Frison did not dispute that he had not incurred attorney's fees. Rather, he argued that his circumstances justified a "narrow exception" to the requirement that the attorney's fees be incurred. He did not cite any case law that would support his decision and the Court of Special Appeals found that he did not make a compelling argument, why such an exception was warranted. In fact, the Court of Special Appeals found that there are public policy reasons weighing against adopting such an exception. Specifically, the court found that requiring that an attorney/client relationship exists before allowing the recovery of attorney's fees avoids the public perception of unfairness in the legal system.

    In any event, the court held that the plain language of RULE 1-341 permits recovery of attorney's fees incurred. A lawyer, like Mr. Frison, who represents himself pro se has not incurred legal fees, i.e., he has not paid or become liable to pay fees. Accordingly, a pro se attorney litigant such as Mr. Frison may not recover attorney's fees pursuant to RULE 1-341.

    The Court did note, however, that Mr. Frison did not make an argument that Mr. Mathis was his employer, and therefore, he was entitled to recover attorney's fees as part of his effort to collect his unpaid "wages" pursuant to MD. CODE ANN., LAB.& EMPL. ยงยง 3-427 (d); 3-507.1 (b). The court did not comment whether it would find this argument persuasive, however, but it would be a future argument for an attorney pro se litigant to make in attempting to recover attorney's fees.