Failure to Award Fees under B & P § 6204(d) Was No Abuse of Discretion.
Here is an interesting case in the continuing saga of prominent civil rights attorney Stephen Yagman. The case is also poignant in showing how trial and appellate courts will use equitable principles to resolve fee recovery matters.
In Yagman v. Colello, Case No. B223412 (2d Dist., Div. 4 Jan. 25, 2011) (unpublished), former client obtained a nonbinding State Bar arbitration award against his former attorneys requiring them to refund him $261,000 of a $290,000 fee after the district court disqualified Yagman from representing Colello (even though Colello was convicted and then imprisoned for over 2 years). Yagman then challenged the award through a de novo procedure in court, successfully arguing that former client could not recover any damages based on a one-year statute of limitations. The appellate court, earlier, affirmed the dismissal on the technicality. Yagman then moved to recover $64,768.50 in attorney’s fees incurred in the prior appeal under Business and Professions Code section 6204(d), which does allow the trial court discretion to award such fees to the prevailing party. The lower court, however, found it “would be a gross abuse of discretion to grant the fee request” based on Yagman’s refusal to refund any of the unearned fees when he won on a technical defense rather than refute the arbitrator’s findings that the unearned fee should be returned. Yagman appealed.
He lost.
The appellate court, clearly siding with the equities as it saw things, found no abuse of discretion in what the lower court did. It credited the State Bar arbitrator’s findings that Yagman should return the unearned fees and did not find that these findings should be disregarded. The presumption of correctness accorded to the trial court’s order prevailed in this particular appeal.
Comments