Attorney’s Fees in Idaho

Oct 12, 2016 | Business, Litigation

The winner of a civil lawsuit will be awarded attorney fees “when justice so requires” after March 1, 2017. That was the unexpected ruling of the Idaho Supreme Court on September 28, 2016. See Hoffer v. Shappard, ____ Idaho ____, ____ P.3d ____, 2016 WL 5416325 (2016).

Today, Idaho courts award attorney fees when a case is “brought, pursued or defended frivolously, unreasonably or without foundation.” I.R.C.P. 54(e)(1). In other words, “justice required” an award of attorney fees when a claim or defense was frivolous, unreasonable or without foundation. This standard is not found in Idaho Code. It is found in the civil rules adopted by the Idaho Supreme Court.

The Idaho Supreme Court found that the civil rule usurped the express intent of the Legislature. After March 1, 2017, “the courts of this state will apply the standard expressed by the Legislature: prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires.’” Hoffer v. Shappard, ____ Idaho ____, ____ P.3d ____, 2016 WL 5416325*14 (2016).

The Court recognized this is a major change and a delay before the decision takes affect is prudent.


We recognize that this Court’s long-belated recognition of express legislative intent may have profound effects on litigants. Thus, we have determined that it is appropriate to give the bench and bar advance notice of the effective date of the new rule. This new rule of law will become effective on March 1, 2017, and will have prospective effect, applying to all cases that have not become final as of that date.


Id. ___, ____ P.3d ____, 2016 WL 5416325*15. The delay also gives the legislature a chance to change Idaho Code § 12-121 before the decision takes affect.

Justice Burdick dissented. He stated that “the majority leaves trial judges at bay, with no guidance to decipher when justice will ‘so require” attorney fees to be awarded.'” Id. Without any “sideboards” to guide a trial judge, it is likely there will be inconsistent results. Id. Moreover, since the decision to award attorney fees is left up to discretion of the trial judge, there will be very little chance of overturning an award by a trial judge. Id.

Justice Burdick also observed that the decision also may also lead to only the rich seeking recourse in court. It is already economic suicide for most of Idaho’s citizens to seek recourse in court because of the cost of litigation is so high. If there is a risk of losing and paying other side’s attorney fees as well, it “will chill litigation.” Id.

Some may say this is a good thing because there is too much litigation. However, it may also have the effect of “inhibit[ing] access to justice and tilt[ing] the table even further toward moneyed interests in our courts.” Id.

We are confident this is not the last you will hear of this decision. We will keep you posted.