Counsel Concerns

The California Court of Appeal, Second Appellate District, decided that law client Jeffrey Cooper's successful appeal of an arbitrator's revised legal fee award to the law firm Lavely & Singer ' in a dispute over the firm's unsuccessful representation of Cooper in a dispute with a production company ' didn't justify an award to Cooper for the costs of his appeal. Cooper v. Lavely & Singer Professional Corp., B261936. Cooper had accused the firm of professional negligence, breach of contract and breach of fiduciary duty. An arbitrator overseeing the attorney/client dispute ruled for the firm on the allegations, denied it legal fees for representing itself in the arbitration with Cooper, but later revised the ruling to award Lavely & Singer $225,677 in fees. Last year, the court of appeal reversed the arbitrator's fee award. Cooper then sought the costs of his appeal, pointing to his earlier Lavely & Singer retainer agreement, which allowed “the prevailing party” in “'any ' controversy' between the [client and law firm] to recover fees incurred in connection with the 'controversy.'” California Civil Code '1717(a) states: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract ' shall be entitled to reasonable attorney's fees in addition to other costs.” But the court of appeal noted, in an unpublished opinion: “Although the [arbitrator's] Final Award [later revised] decided that [fee] issue against L & S, it provided that L & S was the prevailing party in the arbitration, as did the revised final award, which authorized a fee award. Accordingly, within the arbitration, L & S's fee motion initiated no discrete 'action on a contract' in which Cooper was the prevailing party.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance. His new book is Baby You're a Rich Man: Suing the Beatles for Fun & Profit (ForeEdge/University Press of New England). For more, visit www.stansoocher.com.