Santa Judge is Comin’ to Town

“He’s making a list, checking it twice, gonna find out who’s naughty or nice…”

Uncivil behavior will not only land an attorney on a judge’s naughty list – it can also cost the attorney hundreds of thousands of dollars.

A recent case, Snoeck v. ExakTime Innovations, Inc., confirmed the trial court has discretion to reduce an attorneys’ fee award by applying a negative multiplier to account for an attorney’s incivility. In Snoeck, plaintiff sued his former employer for violations of FEHA, California’s Fair Employment and Housing Act. The jury awarded plaintiff approximately $130,000 in damages, which entitled him to recover his reasonable attorneys’ fees as the prevailing party.

In reviewing a request for reasonable attorneys’ fees, a trial court generally employs the “lodestar” method, which takes into account the reasonable hours spent, multiplied by the prevailing hourly rate for attorneys in the community. The trial court then has discretion to increase or reduce the lodestar award by applying positive or negative multipliers based on a number of different factors.

In Snoek, the trial court applied a 40% negative multiplier to account for plaintiff’s counsel’s intentional lack of civility to both opposing counsel and the court, which slashed the award of attorneys’ fees from $1,144,659.36 to $686,795.62 – a loss of over $450,000!

The appellate court affirmed the trial court’s decision to apply a negative multiplier, holding that a trial court may consider an attorney’s “pervasive incivility in determining the reasonableness of the requested fees” because civility is a vital attorney skill.

So just how bad does the conduct have to be to cost you nearly a half-million dollars?

Well, plaintiff’s counsel made frequent personal attacks in emails to opposing counsel, which included accusations of “exploiting the Court,” misrepresenting the law and facts to the courts, lying, engaging in “cringeworthy” behavior, and having committed “a brazen con” that “duped” the trial and appellate courts.

In addition, the trial court noted that counsel’s tone during hearings was “belittling,” “antagonistic,” and even “verged on the contemptuous.” The appellate court similarly observed that counsel’s “disdain for the trial court practically jumps off the pages of the reporter’s transcript of the fee motion hearing.”

Notably, the appellate court emphasized that attorneys can conduct themselves in a civil manner while still being zealous advocates for their clients. One does not negate the other.

In sum, civility is a cornerstone of the legal profession, and a lack of civility can be costly to an attorney’s reputation as well as their bottom line.

“He knows if you’ve been bad or good, so be good for goodness sake!”