Use of Associate For Appellate Work Was Tantamount to “Lost Opportunity Costs” Not Allowable under Trope.
We have done numerous posts on the Trope limitation which prevents in pro per attorneys representing themselves from obtaining attorney’s fees recovery under various fee-shifting statutes or contractual clauses. Now, Justice Mosk of the Second District, Division 5 has penned an opinion reviewing Trope-inspired jurisprudence and concluded on behalf of a 3-0 panel that an associate working for a law firm/its partners is disqualified from seeking fee recovery on the attorneys’ behalf.
Carpenter & Zuckerman v. Cohen, Case No. B215544 (2d Dist., Div. 5 May 10, 2011) (certified for publication) involved a situation where cross-defendants (a law firm and two individual partners) won a SLAPP motion against a cross-complaint filed by former clients and then obtained dismissal of the ensuing appeal as being untimely in nature. Winning attorneys had used an associate in the firm to do the appellate work under an independent contingency arrangement. They then requested recovery of $33,168.75 in attorney’s fees for the appellate win. The trial court refused to make the award, reasoning that the associate’s work fell within the Trope limitation. Disappointed law firm and its partners appealed.
The appellate court affirmed.
Appellants mainly relied on Gilbert v. Master Washer & Stamping Co., Inc., 87 Cal.App.4th 212 (2001), where another appellate court held that Trope did not apply where another partner with no personal interest in a case represented another impacted partner. The Cohen court did not buy Gilbert’s distinction between less partnership income from using another partner (compensable) versus lost opportunity costs of personally litigating the matter oneself (noncompensable), labeling it “a bit obscure.”
For the appellate court here, the crucial distinction was that the representing attorney was an associate, not a true independent contractor, representing the interests of the law firm with which she was affiliated. This was more akin to “lost opportunity costs,” in the view of the appellate court.
Cohen also found that the individual attorneys were not separately entitled to fees because nothing demonstrated they were sued on matters unrelated to their law firm work for the former clients.
BLOG UNDERVIEW–Justice Mosk dropped an interesting footnote explaining the derivation of the phrase “in propia persona.” Originally, he informs us, it was used to describe an old English pleading by which the party appeared in person to challenge jurisdiction–kinda like a special appearance in modern parlance. Nice historical nuance. (See Slip Opn., footnote 4.)