Section 57.105: A New “Fee Shifting” Statute?


By Jennifer S. Carroll

We are all familiar with the “American rule” on legal fees: generally, a court can only award attorneys’ fees to a party when such fees are “expressly provided for by statute, rule, or contract.” In most cases, litigants are responsible for paying their own fees and costs in pursuing or defending a lawsuit.

As originally enacted, Section 57.105 authorized an award of attorney’s fees against a party and that party’s attorney when the court found “a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.” §57.105 (1), Fla. Stat. (1995).

On October 1, 1999, Section 57.105 was substantially revised. Under the 1999 amendment, the “complete absence of a justiciable issue” language was omitted, and attorneys’ fees could now be assessed if the court found that the losing party or the losing party’s attorney “knew or should have known” that a claim or defense, when initially presented to the court or at any time before trial: (a) was not supported by the material facts necessary to establish the claim or defense; or (b) would not be supported by the application of the then-existing law to those material facts. §57.105 (1), Fla. Stat.

In 2002, the Florida Legislature added a “safe harbor” provision, subsection (4), which states that “[a] motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” The purpose of Section 57.105 (4) is to give a litigant an opportunity to withdraw a frivolous claim or defense within the scope of the statute.

The 1999 amendment significantly broadened the court’s power to award fees. Section 57.105 (1) no longer applies only to the entire action or defense; it now applies to any particular claim or defense raised at any time during the proceedings. Thus, a court may assess attorneys’ fees against a party who advances a meritless claim or defense during the course of litigation even though that party ultimately prevails in the action.

Under Section 57.105, attorney fees are assessed “in equal amounts” against the losing party and the losing party’s attorney. The attorney can avoid personal liability for fees “if he or she has acted in good faith, based on the representations of his or her client.” §57.105 (1), Fla. Stat.

Without question, the 1999 amendments changed the rules for all civil lawyers.

The original intent behind Section 57.105 was to deter frivolous claims and defenses in litigation. Certainly, this is a laudable goal.

But in recent years the broad language of the statute is often abused. Some litigants use the statute more as an opportunity to shift responsibility for attorneys’ fees to the opposing litigant and that litigant’s attorney. These attorneys will seek Section 57.105 fees “at the drop of a hat.” There has arisen in recent years an overuse and abuse of the statute – based on reasons not contemplated by the drafters of this legislation. Civil litigators and family law litigators have seen a tremendous upswing in these types of fee shifting attempts under Section 57.105.

Consistent with the Rules Regulating the Florida Bar, it is without question that attorneys should always treat each other with the utmost respect. “A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers, and public officials. . . .” R. Regulating Fla. Bar 4. Preamble.

Most litigation is a highly emotional endeavor for all parties and their lawyers. In such a charged atmosphere, it is even more important to take a step back, and think about what is the true purpose underlying the statute. Using this unique statute solely as a new alternative for obtaining reimbursement of your client’s fees against the opposing party and that party’s attorney is not a laudable practice, and certainly does not comport with the goals of Section 57.105. Nor does such a tactic comport with the ideals all of us strive to maintain in a profession which requires constant vigilance with respect to these ideals.

Without question a party has every right to seek Section 57.105 fees where appropriate. But attorneys work very hard, and most do their very best to “get it right.” And yes, after the 1999 amendment, the legislature added an attempted safeguard, a safe harbor provision, whereby one must give the opposing side a 21 day opportunity to withdraw alleged unfounded claims or defenses. But even before that initial letter goes out, attorneys owe it to themselves and their profession to think twice – and give serious thought to whether the situation in their case is truly a situation contemplated by this particular statute.

Jennifer S. Carroll concentrates on state and federal civil appeals as well as complex civil litigation, including post-judgment proceedings. Ms. Carroll is a Board Certified Appellate Lawyer, is AV-rated, and is listed in the Bar Register of Preeminent Lawyers. She is admitted to practice before all state courts, the U.S. Supreme Court, U.S. Court of Appeals for the Eleventh Circuit, and the U.S. District Courts for the Middle and Southern Districts of Florida.

The Law Offices of Jennifer S. Carroll, P.A.

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