Prop. 207 Offers Remedies That Already Exist

The Tort Wars are back. Round one, last March, went to lawyers associations as the voters defeated two measures intended to clamp down on how business is done by some lawyers. Voters will help decide the winner of round two on Nov. 5 with their vote on Proposition 207. This measure should be defeated because it is not needed.

The biggest change embodied in Proposition 207, the “Frivolous Lawsuit Limitation Act,” essentially would prohibit the Legislature from ever limiting attorney fees. While the Legislature indeed should not generally be in the business of setting professional fees, there likewise is no need for an initiative specifically geared to protect lawyer fees.

Fee arrangements should remain as they are now, a matter of negotiation between lawyers and their clients. Traditionally, consumers have done little bargaining over legal fees. They should bargain.

To woo voters, Proposition 207 is clothed with so-called consumer protections against excessive fees and frivolous lawsuits. The measure provides that clients can sue their own attorneys to recover fees they deem excessive. In fact, it codifies criteria and remedies already established in the state bar’s rules of professional conduct for determining whether a fee is excessive. Under 207, a judge could sanction an attorney if the court determined he or she had filed a frivolous lawsuit, and repeat offenders would face state bar disciplinary action, including suspension or disbarment.

The provisions relating to excessive fees are not as tough as they sound. Clients would have to file actions in court against their own attorneys to obtain relief. Consumers could represent themselves or hire other attorneys to represent them in such fee actions. But neither is plausible. Plus, how would more clients suing lawyers help free up a clogged court system?

The definition of frivolous litigation is not new; courts already have the power to dismiss motions and lawsuits they consider frivolous, and the bar can act against lawyers who file such suits. The provisions in Proposition 207 pertaining to excessive attorney fees and frivolous suits are only slightly stiffer than existing rules. These changes would be of minimal value to ordinary people compared to the potential harm done by virtually barring the Legislature from ever imposing any future fee limitations on lawyers. Proposition 207 is not necessary.