Rule 902.Attorney Fees

Rule 902 is the fee rule, and it separates entitlement from amount.

Entitlement

The court may award reasonable attorney fees — including paralegal fees — to the prevailing party as Rule 901(a)(2) defines that term, when provided for by any statute or contract. The rule creates no independent right to fees; something else must supply it.

The § 12-121 route

Fees under Idaho Code § 12-121 may be awarded only when the court finds the case was brought, pursued, or defended frivolously, unreasonably, or without foundation. And the finding must be in writing and include the basis and reasons for the award.

Losing is not frivolous. Two further limits: no fees under § 12-121 on a default judgment, and, under section (h), any claim for fees, including one under § 12-121, must be made under this rule unless a statute or contract provides otherwise.

Eleven factors for the amount

The time and labor required; the novelty and difficulty of the questions; the skill requisite and the attorney's experience and ability in the particular field; prevailing charges for like work; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the undesirability of the case; the nature and length of the professional relationship; awards in similar cases; the reasonable cost of legal research where the court finds it was reasonably necessary; and any other factor the court deems appropriate.

Pleading

It is not necessary to assert a claim for fees in any pleading where fees are requested under contract or statute — so a fee claim is not waived by omitting it from the petition.

The exception is default: the amount of attorney fees must be included in the prayer for relief in the petition, and the award must not exceed the amount in the prayer. That follows Rule 802(c)'s rule that a default judgment must not exceed what was demanded.

Procedure

Fees allowable by statute or contract are costs, processed in the same manner and included in the memorandum of costs — so Rule 901(d)'s 14-day deadline and its waiver apply to fees too. The claim must be supported by an affidavit of the attorney stating the basis and method of computation.

Objections follow Rule 901(e), and the court may conduct an evidentiary hearing if it deems one necessary.

The order

The court must enter an order settling the dollar amount. If there was a timely objection to the amount, the order must include the court's reasoning and the factors relied on.

And a closing caution: an allowance of fees under this rule is not to be construed as fixing the fees between attorney and client. What the court shifts and what the lawyer is owed are different questions.