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Am I able to seek attorney's fees if I think the claim against me is bogus?

Another question that frequently comes up is whether attorney's fees are available when a litigant must defend against what is perceived to be a meritless claim. Louisiana Code of Civil Procedure article 863, which relates to the effect given to the signing of pleadings, provides some insight.

Article 863 states that a signature of an attorney constitutes certification, among other things:

  • that the pleading is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

  • that the claims, defenses, or other legal assertions stated therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law; and

  • the allegation or factual assertion has evidentiary support. [La. Code. Civ. Proc. art. 863(B)].

Upon motion, a court may award reasonable attorney's fees if it finds that the certification violates article 863. La. Code Civ. Proc. art. 863(D).

However, article 863 is intended only for exceptional circumstances. Courts have held that sanctions should not be imposed on a lawyer simply because the trial court ultimately finds a particular argument or ground for relief to be without merit. See, e.g., Fairchild v. Fairchild, 580, So. 2d 513, 517 (La. App. 4th Cir. 1991). Where there is even slightest justification for the assertion of a legal right, sanctions are not warranted. Loyola v. A Touch of Class Transp. Serv., 580 So. 2d 506, 513 (La. App. 4th Cir. 1991).

Article 863 is derived from Federal Rule of Civil Procedure 11. Consequently, in interpreting article 863, Louisiana courts have been guided by federal decisions interpreting Fed. R. Civ. P. 11.

Louisiana courts examine the following factors in determining whether a reasonable factual inquiry has been made:

  1. the time available to the signer for investigation;

  2. the extent of the attorney's reliance on his client for the factual support for the document;

  3. the feasibility of a pre-filing investigation;

  4. whether the signing attorney accepted the case from another member of the bar or forwarding attorney;

  5. the complexity of the factual and legal issues; and

  6. the extent to which development of the factual circumstances underlying the claim requires discovery. [Fairchild, 580 So. 2d at 517 (citing Diesel Driving Academy, Inc. v. Ferrier, 563 So. 2d 898, 902 (La. App. 2d Cir., 1990)).]

Among the factors that courts will consider in determining whether a reasonable legal inquiry was made include:

  1. the time available to the attorney to prepare the document;

  2. the plausibility of the legal view contained in the document;

  3. the pro se status of the litigant; and

  4. the complexity of the legal and factual issues raised. [Id.]

While courts will examine the above factors to determine whether reasonable factual and legal inquiries were made before a pleading was filed, courts have seemed rather reluctant to impose sanctions absent egregious circumstances. Therefore, unless the allegations are entirely baseless, attorney's fees under article 863 are not likely to be available.

Imtiaz Siddiqui