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COA: Attorney who litigated his case pro se not entitled to attorney fees

April 26, 2016

A lawyer who represented himself in his case against two Marion County governmental entities and won is not entitled to attorney fees or compensation of any kind for missed business, the Indiana Court of Appeals ruled.

Gregory Bowes, an attorney in good standing in Indiana, won an Indiana Access to Public Records Act case against the Marion County Board of Voter Registration and the Marion County Election Board. Bowes had sought electronic information on Marion County voters. He ran for Marion County judge in the May 2014 primary as a Democrat, but was not in the top eight of votes. He and several others tried to get on the general election ballot after a federal judge ruled the Marion Superior Court election process unconstitutional.

The trial court ruled Bowes could not recover attorney fees because he litigated the claim pro se, but awarded him expenses of litigation to compensate him for his lost opportunities and employment as an attorney.

The MCVR appealed and said that award was an improper award of attorney fees and that the trial court erred when it awarded Bowes the compensation. Bowes cross-appealed saying the trial court erred in denying his request for attorney fees and abused its discretion in determining the amount of litigation expenses.

The APRA allows prevailing plaintiffs to recover attorney fees, but Bowes is not entitled to them because there are none to recover, Judge Rudolph Pyle III wrote for the panel. “Even if a pro se litigant happens to be a lawyer, no attorney fees are earned unless independent counsel is engaged,” he wrote.

Bowes argued that should be changed because an attorney litigant will not necessarily receive better representation by hiring independent counsel than by litigating pro se, and a pro se attorney would be in a better position to evaluate the merits of a potential claim. However, the COA said the point is not to obtain “better” counsel, but independent counsel. Pyle noted that pro se lawyers are at in inherent disadvantage for several reasons, and this was the reason for the rule, not the skill of any pro se counsel.

Pyle also wrote that Bowes is not entitled to litigation expenses for missed work or missed opportunities for work, because there were no expenses when he stopped his business to pursue this litigation. Bowes is entitled to gain back $828.14 for deposition costs and $147 in litigation expenses, but he did not incur any expenses by voluntarily suspending his practice to pursue this litigation.

The case is Marion County Election Board and Marion County Board of Voter Registration v. Gregory Bowes, Mark King, Paul Ogden, Zach Mulholland and Brian Cooper, 55A04-1507-PL-820.
 

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