Answer: Yes, in FEHA and CCP 1021.5 Situations.
Generally, attorneys must file an independent collection action or enforce a contractual attorney’s lien in order to collect fees from an obstinate client, especially a client that will not allow an attorney to file a fee recovery motion against the non-prevailing side. (See, e.g., In re Marriage of Read, 97 Cal.App.4th 476, 481-482 (2002) [divorce proceeding]; Bandy v. Mt. Diablo Unified Sch. Dist., 56 Cal.App.3d 230, 234-235 (1976) [contractual lien in personal injury case].) However, in cases grounded in California’s Fair Employment and Housing Act (Gov. Code sec. 12965) and private attorney general statute (Code Civ. Proc. sec. 1021.5), attorneys have been held to be proper intervenors for purposes of moving to recover attorney’s fees from client’s non-prevailing opponent.
For purposes of FEHA, the California Supreme Court endorsed the right of attorneys to intervene to recoup fees in Flannery v. Prentice, 26 Cal.4th 572 (2001). It held that, absent an enforceable agreement to the contrary, attorney’s fees awarded in FEHA cases “belong to the attorneys who labored to earn them.” Id. at 575, 590.) Because the term “prevailing party” under Government Code section 12965(b) was susceptible to multiple interpretations, the Flannery court embraced protecting attorneys based on prior unrepudiated precedents and the public policy to encourage legal assistance for attorneys undertaking cases that vindicate fundamental public policies.
In reaching this result, the majority in Flannery refused to follow Evans v. Jeff D., 475 U.S. 717, 730-732 (1986), a federal civil rights decision interpreting the federal fee-shifting provision (42 U.S.C. sec. 1988) as referring to litigants alone. Justice Kennard, dissenting in Flannery, would have followed Evans.
Flannery was extended in a way to allow attorney intervention in private attorney general cases by the First District, Division Five in Lindelli v. Town of San Anselmo (Lindelli II), 139 Cal.App.4th 1499 (2006). There, the Court of Appeal saw no “sound basis” to distinguish the FEHA fee-shifting provision and section 1021.5 as far constructing the term “party” for fee recovery purposes. (Id.at 1509.) The Lindelli II court found there were sound policy reasons for concluding as it did: “Were we to interpret section 1021.5 as precluding intervention and an attorney’s request for fees where the client declines to move for a fee award, we would diminish the certainty that attorneys who undertake public interest cases will receive reasonable compensation and dilute section 1021.5”s effectiveness at encouraging counsel to undertake litigation enforcing important public policies.” (Id. at 1512-1513). The appellate court rejected a contrary conclusion reached by the Ninth Circuit in Churchill Village v. General Electric, 361 F.3d 566, 578-579 (9th Cir. 2004), finding it incompatible with the reasoning of Flannery.