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Court of Appeal:
Pro Per Attorney Can’t Recover Fees From Common Fund
By a MetNews Staff Writer
A lawyer who holds an interest of less than one percent in royalties from oil extracted from property in Ventura County, and who judicially established that the purchaser of a parcel of the land at a tax sale owns surface rights only, may not recover fees under a common fund theory, the Court of Appeal for this district declared yesterday, but said that does not disqualify him from receiving costs.
“We hold that an attorney who represents only himself and does not pay or become liable to pay consideration in exchange for legal representation may not recover attorney fees under the equitable common fund doctrine,” Justice Kenneth Yegan of Div. Six wrote, “but may seek recovery of legitimate, reasonable costs excluding attorney fees under that doctrine.”
The lawyer, John L. Poole, who was admitted to law practice in California in 1981 and now resides in Oregon (where he is a software engineer), balked at a settlement between owners of royalty rights under a lease and the purchaser of “Lot 7.” Under the accord, he would have received 5.714 percent of the royalties.
Poole attained a determination in the Ventura Superior Court that the purchaser had no interest in the royalties, and the Court of Appeal affirmed, in an Nov. 20, 2019 opinion by Yegan (who clarified that below-surface rights would revert to the land purchaser upon termination of the lease).
$96,765 in Fees
The lawyer sought $50,745 in fees and $1,572.75 in costs for his services in the appellate court and $46,020 for fees and $1,269.29 for costs for work in the Superior Court. Superior Court Judge Roger L. Lund denied fees and costs and Poole appealed, arguing:
“Specifically, the issue here concerns a California licensed attorney acting pro se seeking compensation from a common fund. It is pure equity, there are no statutes involved.”
Yegan noted that the California Supreme Court, in its 1995 decision in Trope v. Katz, holding that a self-represented attorney may not gain an award of attorney fees based on a fee-shifting provision of a contract, left open the question as to whether recovery may be had, under equitable principles, from a common fund. The jurist declared:
“The common fund theory permits a party to recover his attorney fees from a fund he has created, recovered, or preserved….
“It follows that appellant may not recover attorney fees under the common fund theory. Appellant did not expend attorney fees or become liable for the expenditure of such fees….Moreover, because appellant represented himself, no attorney-client relationship existed.”
Echoing Mosk
Echoing a point set forth by Justice Stanley Mosk (now deceased) in his decision in Trope, Yegan said:
“Public policy considerations support the denial of attorney fees to pro se attorneys. The award of such fees would be inequitable to a nonlawyer party who has not retained counsel and therefore cannot qualify for an award of attorney fees.” Reciting that “eligibility to recover costs excluding attorney fees is not dependent on eligibility to recover attorney fees,” the case was remanded to the Superior Court with the instruction that the court was to exercise its discretion as to whether costs should be awarded.
The case is Leiper v. Gallegos, 2021 S.O.S. 5290.
Poole was in pro per. Cheryl A. Orr of Musick, Peeler & Garrett acted for Bank of the West, which is co-trustee of a trust under which royalty rights were disseminated to shareholders in a dissolved corporation. The bank did hire counsel and was awarded attorney fees by the trial court.
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