Ethics: Defense Counsel’s Failure To Notify Plaintiff Or Lower Court About Ineligibility To Practice Of Plaintiff’s Attorney Led To A Reversal And Remand Of An Adverse Fee Award Against Plaintiff

Plaintiff Was Not In Pro Per, But Basically Unrepresented By Ineligible Counsel And No One Gave Her Notice Of The Ineligibility—Civility Again Stressed In The Fees Area.

               Civility has been stressed in many recent appellate opinions, with fee reductions affirmed and with multipliers denied based on incivility by a litigant’s claiming attorney asking for fees.  Prato v. Giola, Case No. G064139 (4^th Dist., Div. 3 June 27, 2025) (published) may be even the strongest testament to how civility will impact attorney’s fees awards. 

               There, plaintiff’s case was dismissed because her ineligible practicing attorney did not appear for trial, a fact known by defense counsel and with no one providing plaintiff notice about her counsel’s ineligibility.  Defendants moved for attorney’s fees under a contractual fees clause, with the lower court granting over $70,000 in fees against plaintiff and her company even though she did hire an attorney to oppose by bringing the lack of ineligibility notice to plaintiff as an argument against the fee motion.  Plaintiff prudently appealed.

               The 4/3 DCA, in an opinion authored by Acting Presiding Justice Moore, reversed and remanded.  The panel chided defense counsel for failing to notify plaintiff about the ineligibility either through direct notice or a request to send such a notice before the lower court.  It was inequitable for plaintiff to have to bear an adverse fee request, with the appellate court strongly suggesting it was wrong to even impose fees under the circumstances.  Nevertheless, the panel reversed and remanded, but this opinion does bring civility themes clearly at the forefront for California practitioners to ponder as they are litigating cases, no matter what side they represent.

               BLOG OBSERVATION—Co-contributor Mike recently attended at ADR Services Webinar by Retired Judges Kathleen Kelly and Suzanne Ramos Bolanos on high-stakes mediations.  They did mention that incivility can result in reduced fee awards, citing Snoeck v. ExakTime Innovations, Inc., 96 Cal.App.5^th 908, 927 (2023) and Karton v. Ari Design & Construction, Inc., 62 Cal.App.5^th 734, 747 (2021) among other cases.