OLA#: 016-03C

LEGISLATIVE ANALYST REPORT

TO: Honorable Members of the Board of Supervisors

FROM: Office of the Legislative Analyst

DATE: June 30, 2003

SUBJECT: Employee Suggestion #494: Request for Attorney Fees

EMPLOYEE SUGGESTION

The city employee recommends that when a party or their attorney either fails to appear for court, for trial or long cause, the department should request attorneys' fees. They should also request sanctions against a party or their attorney for violations of the Family Code, Civil Code, or Code of Civil Procedure.

According to the employee, Civil and Family Law (private) attorneys are entitled to attorneys' fees. City agencies, such as the Department of Child Support Services, should also be entitled to fees and costs under certain circumstances.

EXECUTIVE SUMMARY

An employee in the Department for Child Support Services (DCSS) suggested allowing city attorneys to request fees, sanctions, and fines when appropriate in trial courts. Currently, the Child Support Services agency is prohibited from requesting attorney fees, though they are able to request non-monetary sanctions. The suggestion advises that requesting such fees could provide the agency with additional income, in addition to ensuring that parties take the trial system more seriously. However, state funding requirements do not allow the recovery of fees for DCSS attorneys in many instances. Allowing for recovery of fees is a policy matter for the State.

ANALYSIS & RECOMMENDATIONS

The Department of Child Support Services provides free services for all custodial parents, whether or not they receive welfare. The only requirements are that the parents have physical custody of the child and cooperate with the Department in working the case. The Department employs seven attorneys in addition to one director.

Private practice attorneys are allowed to charge fees (fees might range anywhere from $75 to $150 per hour) under specific criteria that are not allowable charges for DCSS attorneys'. Award of costs occurs when a party's conduct frustrates settlement or increases the cost of litigation. Examples of such situations might occur when parties do not show up for trial, or when a plaintiff files a motion, loses, and re-files an identical copy of the motion. This is a waste of an attorney's valuable time and money and should be penalized. Misuse of discovery is another sanctionable event, often committed by attorneys.

Under the California Code of Civil Procedure, section 128.5, every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorneys' fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. "Actions or tactics" might include the making or opposing of motions or the filing and service of a complaint or cross-complaint. "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing the opposing party. The trial court has broad discretion to award fees or costs based on what is just and reasonable under the circumstances, taking into consideration the parties' needs and abilities to pay and the conduct of each party.

According to the City Attorney's office, any Deputy Attorney for the city can and does request fees whenever possible. The fees requested are reportedly on a par with fees requested by private practice attorneys.

Milton Hyams, director of DCSS, explains that administration of funds for DCSS derives from both federal (66%) and state (34%) sources. One of the requirements for receiving state funding relates to the state's election of whether or not it will allow cost recovery actions. California is currently not a recovery state, while others are. As such, there are very limited instances in which DCSS can charge fees. Genetic tests for paternity are typically the only fees that can be recovered. According to Mr. Hyams, there has been "a lot of noise" from local California departments of child support in attempts to request a change in legislation.

· The Board of Supervisors may want to consider lobbying at the state level to change California's policy on recovery of attorney fees.

· Allowing the Department of Child Support Services (and other legal departments) to charge fees or fines for sanctionable events would provide the Department with additional income, and would make attorneys and/or parties take the agency more seriously. Furthermore, DCSS would gain more equal footing with their opposing private attorneys.