Editor’s note: This piece from the SCOV Law Blog is by Rich Cassidy.
Toensing v. The Attorney General of Vermont 2019 VT 30
[T]his case resolves the dispute over attorneys’ fees arising from Public Records Act litigation between Brady Toensing, the vice chair of the Vermont Republican Party, and Vermont’s Attorney General. Toensing sought a broad range of email and private messaging records reflecting communications between some two handfuls of public officials and 44 individuals and entities and several domain names over a period of more than five years. By agreement, the AGO hired a private contractor, at Toensing’s expense, which discovered 13,629 responsive emails in 1,129 email chains in the state system. The AGO disclosed some records, withheld some as exempt from disclosure under the PRA and others on the ground that they were not public records at all.
Toensing filed an administrative appeal, challenging the AGO’s refusal to produce records kept on private email or test messaging accounts. The following appeal to the SCOV established the important – but some would have thought obvious — proposition that where a record is kept does not control its status as a public record. See Toensing I.
Toensing, who is a lawyer, and therefore arguably a “Pro-Ser,” sought to recover his costs and the value of his time litigating the matter as well as the value of the time of others in his law firm who worked on the case. The Superior Court allowed Toensing to recover his costs, other than for computer-assisted legal research. It treated the research costs as part of his claim for attorneys’ fees, which it denied, concluding that prevailing self-represented plaintiffs, even those who are attorneys, may not recover attorney’s fees under the PRA.
On appeal SCOV decided that it does matter “who,” affirming the Superior Court’s denial of fees to self-represented attorney plaintiffs.
As courts should, SCOV relies mostly on the language of the applicable statute, 1 V.S.A. §319(d):
(1) Except as provided in subdivision (2) of this subsection, the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
Subdivision (2) doesn’t apply. Toensing argues he should recover because the statute makes attorneys’ fees mandatory and doesn’t explicitly except attorneys representing themselves.
Logically enough, SCOV turns it decision on the meaning of the phrase “attorney’s fees[.]” It turns first to Black’s Law Dictionary for the proposition that an “Attorney’s fee is “[t]he charge to a client for services performed for the client …” and an attorney is “’[s]trictly, one who is designated to transact business for another; a legal agent.”
The idea is that to be an attorney one must be the agent for another, that is, for a client. Bottom line: No client, no lawyer, and therefore, no attorneys’ fees.
There’s lots more here that supports SCOV’s view, including the meaning of the word “incur,” which it says suggests that fees are only to be awarded when a client is liable for his or her lawyer’s fees.
Then too, there is the fact that nearly every other court deciding this question under similar statutes has denied fees to self-representing lawyers. SCOV also notes the lack of any legislative history to the contrary.
Toensing tries to argue a policy point that, on clean slate, might have scored: that allowing self-representing lawyers to recover fees would advance the public policy favoring the disclosure of public records. But the policy can’t overcome the contrary language of the statute.
Finally, Toensing is done in by a variation of the idea that one who represents himself has a fool for a client. Quoting from Kay v. Ehrler, 499 U.S. 432 (1991), SCOV notes that the advantages of using detached independent counsel, “to ‘ensur[e] the effective prosecution of meritorious claims’ and secondarily to ‘filter[] out meritless claims.’”
The lesson is simple: want to pursue a claim and have a chance of recovering your fees and expenses? Get a client!
