Respondent in CPO case awarded attorney fees in D.C.

A Koehler Law client was recently reimbursed for his attorney fees after prevailing as the respondent in a civil protection order (CPO) case in Washington, D.C.

The court awarded fees after concluding that the petitioner had brought the case in bad faith, fabricated evidence, and committed perjury at trial.

The “American Rule” for Attorney Fees

Under the so-called “American Rule,” parties in a legal matter are generally required to pay their own attorney fees. Synanon Foundation, Inc. v. Bernstein, 517 A.2d 28, 35 (D.C. 1986).

The rule is based on the assumption that, because “litigation is uncertain in its outcome,” a party “should not be penalized for defending or prosecuting a lawsuit.” Id. at 36. The rule also “aims to avoid chilling possibly meritorious actions.” Yeh v. Hnath, 294 A.3d 1081, 1085 (D.C. 2023).

D.C. law provides one statutory exception in CPO cases by authorizing an award of “costs and attorney fees” to the petitioner. D.C. Code § 16-1005(c)(8).

The Bad-Faith Exception to the American Rule

Another exception, recognized at common law, is the bad-faith exception. It “permits an award of attorneys’ fees against a party who has acted ‘in bad faith, vexatiously, wantonly, or for oppressive reasons’ connected to the litigation.” Synanon, 517 A.2d at 36.

Bad faith may arise either from filing a frivolous claim or from the way a properly filed claim is litigated. Jung v. Jung, 844 A.2d 1099, 1108 (D.C. 2004).

“An action is brought in bad faith when the claim is entirely without color and has been asserted wantonly, for purposes of harassment or delay, or for other improper reasons.” Synanon, 517 A.2d at 40.

Courts should not invoke the bad-faith exception lightly. They “must scrupulously avoid penalizing litigants for aggressively litigating their claims or discouraging good faith assertions of colorable claims and defenses.” Jung, 844 A.2d at 1108. “The party’s bad faith conduct must be so egregious that fee shifting becomes warranted as a matter of equity.” Id. at 1107.

Examples of bad faith include cases in which “a lawyer knowingly violated the rules of professional conduct, a party committed a fraud upon the court in the course of litigation, a party wantonly failed to comply with a final court order, or a party’s claim had no basis whatever in the evidence to support it and was admittedly brought for coercive purposes.” Yeh, 294 A.3d at 1089.

Bad faith must be established by clear and convincing evidence. Fischer v. Estate of Flax, 816 A.2d 1, 12 (D.C. 2003).

The court may award fees “only for the portion of the litigation that was conducted in bad faith.” General Federation of Women’s Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123, 1128 (D.C. 1988).

Finding of Bad Faith in the Petition Against a Koehler Law Client

In granting Koehler Law’s request for attorney fees, the court made two adverse factual findings against the petitioner.

First, the court found that the petitioner was motivated largely, in his own words, to give the respondent “a taste of his own medicine” and to pressure the respondent into dismissing civil and criminal charges in Virginia. In one filing, for example, the petitioner expressed satisfaction that the respondent “now knows how it feels to have a protective order hanging over his head.”

Second, and more importantly, the court found that the petitioner fabricated an email to support his case and then committed perjury when he attempted to introduce that email into evidence.

The court concluded:

The Petitioner’s “actions directly undermined the truth-seeking function of this Court. By submitting the falsified email and then committing perjury in testifying about the email, Petitioner perpetrated a fraud upon the Court and thus acted in bad faith.”

To find out if you might be eligible for recouping attorney fees in your CPO matter, please contact Jamison Koehler at 202-549-2374 or jkoehler@koehlerlaw.net.