ATTORNEY'S FEES

"Legal Lexicon":
ATTORNEY'S FEES - The usual and ordinary meaning of the words
'attorney's fees' is the consideration that a litigant pays or becomes
liable to pay in exchange for legal representation.
Black's Law Dictionary defines the word 'fee' generally as 'A recompense
for an official or professional service or a charge or emolument or
compensation for a particular act or service. A fixed charge or
perquisite charged as recompense for labor; reward, compensation, or
wage given to a person for performance of services or something done or
to be done.' (Black's Law Dict. (6th ed. 1990) p. 614.) It goes on to
define the phrase 'attorney fees' as a 'Charge to client for services
performed (e.g. hourly fee, flat fee, contingency fee).' (Ibid.)
Similarly, Webster's defines the word 'fee' as 'compensation often in
the form of a fixed charge for professional service or for special and
requested exercise of talent or of skill.' (Webster's New Internat.
Dict., supra, p. 833; see also 5 Oxford English Dict. (2d ed. 1989) p.
797 【'fee' denotes 'a payment,' such as the 'remuneration paid or due to
a lawyer, a physician, or (in recent use) any professional man, a
director of a public company, etc. for an occasional service'】.)
Accordingly, the usual and ordinary meaning of the words 'attorney's
fees,' both in legal and in general usage, is the consideration that a
litigant actually pays or becomes liable to pay in exchange for legal
representation. An attorney litigating in propria persona pays no such
compensation.
'The object of the law allowing counsel fees is . . . to reimburse 【the
creditor】, in a proper amount, for a sum which he pays, or becomes
liable to pay, or to relieve him of the burden of paying counsel
fees.'】; Carriere v. Minturn (1855) 5 Cal. 435 【'counsel fees' provision
in mortgage was not to be construed as a penalty but as 'a provision
against an actual expense to be incurred by the creditor on account of
the failure of the debtor to fulfil his contract'】; City Investment Co.
v. Pringle (1920) 49 Cal.App. 353, 356 【lessee was not entitled to
attorney fees under a lease provision because he did not hire an
attorney and 'The object of a provision for attorney's fees in a
contract is to reimburse a party for sums he pays, or becomes liable to
pay, as attorney's fees.'】.)
It was established that in a condemnation proceeding an attorney who
represented himself could not recover attorney fees because he had
neither paid nor incurred liability to give consideration in exchange
for legal representation. (See, e.g., City of Los Angeles v. Hunt (1935)
8 Cal.App.2d 401, 403-404; City of Los Angeles v. Moyer (1930) 108
Cal.App. 4, 6.) The rule was not limited to condemnation cases. For
example, 10 years before the Legislature enacted section 1717 the Court
of Appeal applied the reasoning of Sten outside the condemnation context
and treated it as a rule of general application. (O'Connell v. Zimmerman
(1958) 157 Cal.App.2d 330, 336-337.)
See Kay v. Ehrler (1991) 499 U.S. 432, 435 & fn. 5 【federal circuit
courts have unanimously and correctly held that nonattorney pro se
litigants cannot recover a 'reasonable attorney fee' under the Civil
Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. section 1988】;
Manos v. U. S. Dept. of Air Force (N.D. Cal. 1993) 829 F. Supp. 1191,
1192-1193 【federal circuit courts have unanimously held that nonattorney
pro se litigants cannot recover attorney fees under the Freedom of
Information Act, 5 U.S.C. section 552(a)(4)(B) et seq.】; Swanson &
Setzke, Chtd. v. Henning (Idaho Ct. App. 1989) 774 P.2d 909, 910 【'a
clear majority of courts hold that if a nonlawyer undertakes to
represent himself in litigation, he is not entitled to an award of
attorney fees'】.)
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