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ATTORNEY'S FEES

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The usual and ordinary meaning of the words 'attorney's fees' is the consideration that a litigant pays or becomes liable to pay in exchange for legal representation.

Black's Law Dictionary defines the word 'fee' generally as 'A recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done.' (Black's Law Dict. (6th ed. 1990) p. 614.) It goes on to define the phrase 'attorney fees' as a 'Charge to client for services performed (e.g. hourly fee, flat fee, contingency fee).' (Ibid.) Similarly, Webster's defines the word 'fee' as 'compensation often in the form of a fixed charge for professional service or for special and requested exercise of talent or of skill.' (Webster's New Internat. Dict., supra, p. 833; see also 5 Oxford English Dict. (2d ed. 1989) p. 797 ['fee' denotes 'a payment,' such as the 'remuneration paid or due to a lawyer, a physician, or (in recent use) any professional man, a director of a public company, etc. for an occasional service'].) Accordingly, the usual and ordinary meaning of the words 'attorney's fees,' both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation.

'The object of the law allowing counsel fees is . . . to reimburse [the creditor], in a proper amount, for a sum which he pays, or becomes liable to pay, or to relieve him of the burden of paying counsel fees.']; Carriere v. Minturn (1855) 5 Cal. 435 ['counsel fees' provision in mortgage was not to be construed as a penalty but as 'a provision against an actual expense to be incurred by the creditor on account of the failure of the debtor to fulfil his contract']; City Investment Co. v. Pringle (1920) 49 Cal.App. 353, 356 [lessee was not entitled to attorney fees under a lease provision because he did not hire an attorney and 'The object of a provision for attorney's fees in a contract is to reimburse a party for sums he pays, or becomes liable to pay, as attorney's fees.'].)

It was established that in a condemnation proceeding an attorney who represented himself could not recover attorney fees because he had neither paid nor incurred liability to give consideration in exchange for legal representation. (See, e.g., City of Los Angeles v. Hunt (1935) 8 Cal.App.2d 401, 403-404; City of Los Angeles v. Moyer (1930) 108 Cal.App. 4, 6.) The rule was not limited to condemnation cases. For example, 10 years before the Legislature enacted section 1717 the Court of Appeal applied the reasoning of Sten outside the condemnation context and treated it as a rule of general application. (O'Connell v. Zimmerman (1958) 157 Cal.App.2d 330, 336-337.)

See Kay v. Ehrler (1991) 499 U.S. 432, 435 & fn. 5 [federal circuit courts have unanimously and correctly held that nonattorney pro se litigants cannot recover a 'reasonable attorney fee' under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. section 1988]; Manos v. U. S. Dept. of Air Force (N.D. Cal. 1993) 829 F. Supp. 1191, 1192-1193 [federal circuit courts have unanimously held that nonattorney pro se litigants cannot recover attorney fees under the Freedom of Information Act, 5 U.S.C. section 552(a)(4)(B) et seq.]; Swanson & Setzke, Chtd. v. Henning (Idaho Ct. App. 1989) 774 P.2d 909, 910 ['a clear majority of courts hold that if a nonlawyer undertakes to represent himself in litigation, he is not entitled to an award of attorney fees'].)

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