Beyond statute, rule, and contract: equity as a basis for awarding attorneys' fees.

• Author: Karatinos, Theodore E.

An award of attorneys' fees is in derogation of common law, (1) but has occasionally been permitted at equity. At law, a court may only award attorneys' fees when the award is expressly provided for by statute, rule, or contract. (2) At equity, courts may award attorneys' fees under limited circumstances. Given their equitable roles, probate, guardianship, trust, and family courts have occasion to award attorneys' fees as a matter of fairness to the parties. Derived from the historic powers of chancery, modern courts have the inherent, although limited, authority to award attorneys' fees on equitable grounds.

Since the merger of law and equity, Florida courts have been reluctant to expand judicial authority to award attorneys' fees beyond statute, rule, or contract. (3) Of course, the probate, guardianship, trust, and domestic relation statutes often provide entitlements to attorneys' fees. When an attorney renders services to a decedent's estate, the attorney may apply for statutory fees. (4) When an attorney renders services to a guardian or ward, (5) to a trust, (6) or for the purpose of conducting post-marital litigation, (7) the attorney may apply for statutory fees. Yet while numerous other statutes (8) provide for fee-shifting in probate, guardianship, trust, and family law, they are not the only basis for awarding attorneys' fees.

Beyond statute, rule, or contract, Florida courts have recognized three equitable grounds for awarding attorneys' fees. First, a court may award fees based upon inequitable conduct. Second, a court may award fees based en an attorney's efforts to create a common fund. Third, a court may award fees based on a person's efforts to preserve assets in trust. To better serve their clients, practitioners before probate, guardianship, and family courts should familiarize themselves with these equitable fee entitlements.

The Florida Supreme Court crystallized the inequitable conduct doctrine as a basis for fees in Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998), cert. denied, 525 U.S. 1187 (1999), in 1998. The inequitable conduct doctrine permits an award of attorneys' fees when a party has exhibited egregious conduct or acted in bad faith. (9) The doctrine recognizes a court's inherent power to police abuses of the judicial process. In Bitterman, a co-personal representative raised picayune objections to standard petitions for the administration of estate assets. (10) He also opposed compromise. After outlining the co-personal representative's acts of bad faith, the court taxed attorneys' fees under the inequitable conduct doctrine. (11)

The Florida Supreme Court later extended the inequitable conduct doctrine to include vexatious conduct by attorneys in Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002). However, the court cautioned that trial courts must "sparingly and cautiously" exercise their inherent authority to award attorneys' fees against an attorney. (12) Presumably, a court's inherent authority to sanction an attorney for vexatious conduct arises from its role in regulating the conduct of attorneys as its officers. Therefore, an appropriate balance must be struck between condemning unprofessional tactics and chilling zealous advocacy. (13) In accordance with due process, any court considering such sanctions...