A few weeks ago one of my mentees inquired whether there were circumstances in which an attorney could be required to pay the other party’s attorney’s fees. There are two circumstances I am aware of and a wise attorney avoids those circumstances.
An attorney can be required to pay the other side’s fees for having to respond to a frivolous filing by that attorney. South Carolina Rule of Civil Procedure 11(a), reads:
Every pleading, motion or other paper of a party represented by an attorney shall be signed in his individual name by at least one attorney of record who is an active member of the South Carolina Bar, and whose address and telephone number shall be stated. A party who is not represented by an attorney shall sign his pleading, motion or other paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay. …
If a pleading, motion or other paper is not signed or does not comply with this Rule, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this Rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.
There is a similar remedy under the South Carolina Frivolous Civil Proceedings Sanctions Act. S.C. Code § 15-36-10. To avoid being assessed fees under this rule and act one should never sign a pleading, motion, or other paper without having good ground to support it or if the intent is merely for delay.
An attorney can be also required to pay the other side’s fees for improperly directing a client not to respond to the other party’s discovery or improperly directing a client to file a motion to compel discovery. South Carolina Rule of Civil Procedure 37 has numerous provisions in which an attorney can be ordered to pay the other side’s fees. Subsection (a)(4), reads (emphasis added):
If the motion [to compel] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
Subsection b (emphases added) authorizes the court to order an attorney to pay the other side’s fees when that attorney counsels violation of an order compelling discovery:
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Subsection d (emphases added) authorizes the court to order an attorney to pay the other side’s fees when that attorney counsels a client not to attend a properly noticed deposition, answer interrogatories or respond to a request for production:
In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Finally subsection e (emphases added) authorizes the court to order an attorney to pay the other side’s fees when that attorney fails to participate in good faith in the framing of a discovery plan:
If a party or his attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or his attorney to pay to any other party the reasonable expenses, including attorney’s fees caused by the failure.
While I have yet to see an attorney ordered to pay the other side’s fees due to a Rule 11 violation, I have seen an attorney ordered to pay my fees for failing to respond to discovery in a timely manner. It takes substantial malfeasance for an attorney to be ordered to pay the other side’s fees but it is possible.
This is new to me. Thanks for sharing Gregory!