By David Hricik, Mercer Law School
A long time ago, I posted here about the potential for conflict when fee shifting is in play and the opposing party is seeking an award of fees and asserts that the opposing party may be liable instead of, or in addition to, opposing counsel. In other contexts, courts have found this can create a conflict between the targeted lawyer and client.
For example, in In re Marriage of Wixom & Wixom, 182 Wash. App. 881, 332 P.3d 1063 (2014), after a bitter and long custody dispute in which both the husband and his lawyer took ridiculous positions, the trial court imposed $55,000 in sanctions jointly against husband and his lawyer. On appeal, the lawyer argued that the sanctions should only be imposed against the husband. The appellate court, on its own motion disqualified the lawyer from representing the client and limited the lawyer’s ability to represent only himself. Later, the appellate court held sanctions could be imposed jointly. See, e.g., U.S. v. Emigration Improvement Dist., 14–CV–701, 2016 WL 4148251, at *6 (D. Utah Aug. 4, 2016) (reasoning that attorneys were conflicted when they tried to shift liability for fee awards from themselves to their client); Exp. Dev. Canada v. ESE Elecs. Inc., CV1602967BRORAOX, 2017 WL 3122157, at *5 (C.D. Cal. July 10, 2017) (“The circumstances indicate a conflict of interest between Counsel and their clients with respect to fault for evidentiary complications related to Bright Light’s payments and the Euler insurance claim.”).
I haven’t looked at whether this issue has cropped up in the precise context of Section 285, but lawyers should be thoughtful when Section 285 is raised and the issue of fault, or liability, as between lawyer and client is implicated. (If you know of cases, let me know!). It may be the conflict is waivable. In addition, it may be that courts should use the principle, recognized under Rule 11, that only the lawyer should be liable for legal errors, to reduce conflicts of interest and to also allocate fault where it makes the most sense to place it.