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Tuesday, April 29, 2014

Can an Attorney be Liable for the Opposing Attorney’s Legal Fees?

For over a decade, federal courts have ruled that an attorney who files a frivolous appeal on behalf of his or her client can be ordered to pay the opposing party’s legal fees. For example, in the leading case of Cronin v. Amesbury, the First Circuit Court of Appeals ordered the losing party’s attorney to pay the opposing party’s legal fees after he “crossed the line from zealous advocacy to vexatious advocacy”.

Has this rule been expanded to Massachusetts?

In 2010, the question first came to Massachusetts in City of Worcester v. AME Realty Corp., in which the Appeals Court seemingly expressed support for the federal rule of imposing “joint and several liability” for legal fees on attorneys who file frivolous appeals. In City of Worcester, the Appeals Court referred approvingly to “numerous” federal “decisions applying the sanctions of ‘damages’ and ‘costs’” to attorneys who file frivolous appeals. However, the opinion ultimately declined to say whether the federal rule applied to Massachusetts attorneys.

Last week, a three-judge panel of the Appeals Court directly applied the federal rule in a Massachusetts case: Callahan v. Bedard, Case No. 13-P-914, decided on April 23, 2014 (available here), in which the Court held:

"The mother argues that the father's appeal is frivolous and calls for an award of her reasonable appellate legal fees as well as double costs. We agree. The father should have known that this appeal lacked any reasonable likelihood of success. His contentions conflicted with the plain meaning of both statutory provisions and precedent. His counsel should have appreciated, just as well, the meritless quality of those arguments. They have wasted the resources of both the mother and this court. The law provides a remedy for the mother. The father and the law firm of Bedard & Bobrow, P.C., shall be jointly and severally liable for the payment of the appellate attorney's fees of the mother and for the sum of double her appellate costs."

In the wake of Callahan, Massachusetts attorneys should be more wary than ever that filing a “frivolous” claim can result in liability not just for a client, but for the attorney as well. In Callahan, the recipient of the fee award was the Hingham law firm of Stevenson & Lynch, P.C., which represented the mother in the appellate proceedings.

(Note: although “unpublished” opinions of Appeals Court panels do not create the same binding precedent as decisions of the full Appeals Court, these so-called “rule 1:28 decisions” are available online, and are frequently cited by attorneys and judges in Massachusetts for their persuasive value.)

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