Attorneys Fees as Sanctions: the Difference between the Family Code and the Civil Code

I recently wrote about attorney’s fees as a sanction and distinguished an award of attorneys fees as a sanction from attorney fees based on need in this post. I noted that Family Code Section 271 provides authority for sanctions against the adverse party (i.e. one’s ex). It does not authorize sanctions against the adverse party’s attorney. This is important because sometimes the sanctionable conduct is clearly the fault of the lawyer and not the adverse party. What can be done in such a case?

One would  seek sanctions under Cal Code Civ Proc 128.5. That statute is applicable to all civil cases including family law. Many family law attorneys fail to recognize that the California Code of Civil Procedure allows sanctions. FC 210 states that all the civil rules are applicable to actions under the Family Law Act.

CCP 128.5 states “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”

An important difference between CCP 128.5 and F.C. 271 is that CCP 128.5 allows sanctions, under the appropriate circumstances, to be awarded against adverse lawyer and/or the adverse party. F.C. 271 limits the award to the adverse party even if it is the adverse lawyer who was responsible for the sanctionable conduct.

As noted above many family law attorneys appear to be unaware of Cal. Code Civ. Proc. 128.5 and in a recent case a judge seemed equally unaware. In Featherstone v. Martinez, 86 Cal. App. 5th 775 a judge ordered sanctions on its own motion against a party and against their attorney uder F.C. 271. The Court of Appeal reversed the order, stating “as to [the attorney] the family court’s sanctions award is obviously wrong: Section 271 permits imposing sanctions only on a party, not a party’s attorney, and the sanctions award against Hill is therefore improper.”

An important difference between CCP 128.5 and F.C. 271 is that CCP 128.5 allows sanctions, under the appropriate circumstances, to be awarded against adverse lawyer and/or the adverse party. F.C. 271 limits the award to the adverse party even if it is the adverse lawyer who was responsible for the sanctionable conduct.