Trope Waiver OK Between Sophisticated Parties (But Fees Were Not Awarded For Self-Representation Anyway), With Arbitrator Not Being Bound By Prevailing Party Statutory Test And Not Having To Allocate Between Contract/Tort Claims.
In Flint v. Koslyn, Case No. B289997 (2d Dist., Div. 7 June 16, 2020) (unpublished), former attorney/tenant of a client/landlord entered into a hybrid fee engagement, agreeing to represent client in exchange for a lower monthly rental amount. The retention agreement had a fees clause covering both fee agreement and malpractice claims, and it also allowed attorney to represent herself without disqualification from fee recovery (a Trope waiver). Based on an arbitration clause, a dispute over rent and attorney services between the two sides went to arbitration, where a minor compensatory award was made to former client/landlord but with the arbitrator awarding almost $87,132.42 to attorney/tenant (almost all attorney’s fees and costs, determining she was the prevailing party after prevailing on 75% of the contract claims, minus a small $2,000 offset due to the former client/landlord). The arbitration award was confirmed by the superior court.
Former client/landlord’s challenges to the arbitration award were unsuccessful.
Although seeming to endorse that a Trope waiver may well be enforceable between sophisticated parties, the appellate court did not have to confront the issue because the winning party in the arbitration did not seek self-representation fees. The retention agreement did authorize fees to the prevailing party, such that the arbitrator had broad leeway to determine who prevailed—not needing to use the routine costs definition of a prevailing party and not required to allocate fees between contract/tort claims. Arbitration award affirmed.
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