DUNCAN v. POYTHRESS, 777 F.2d 1508 (11th Cir. 1985)

ELIZABETH D. DUNCAN, ET AL., PLAINTIFFS-APPELLANTS, v. DAVID B. POYTHRESS, ET AL., DEFENDANTS-APPELLEES.

No. 84-8076.United States Court of Appeals, Eleventh Circuit.
December 12, 1985.

Kathleen Kessler, Atlanta, Ga., for plaintiffs-appellants.

Robert J. Winicki, Jacksonville, Fla., for amicus curiae Winicki.

Patrick McKee, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges.[*]

KRAVITCH, Circuit Judge:

[1] Appellant Kathleen Kessler appeals the denial of her application for attorney’s fees

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pursuant to 42 U.S.C. § 1988. During the early part of this litigation, Kessler represented plaintiffs Duncan and Stout; later in the litigation, after she was added as a plaintiff, Kessler represented herself. The lower court denied fees for the period in which Kessler represented herself under the theory that a lawyer who appears pro se is never entitled to attorney’s fees under section 1988. The court denied Kessler fees for the time that she represented the other plaintiffs because it concluded that Kessler did not request such fees in her initial application. Finding that the court below erred in both rulings, we reverse.

[2] I. BACKGROUND
[3] Plaintiffs brought this suit pursuant to 42 U.S.C. § 1983
claiming that the refusal of state officials to call a special election to fill a position on the Georgia Supreme Court violated their constitutionally protected right to vote.[1] Elizabeth Duncan and Elizabeth Stout were the only two plaintiffs at the time of the filing of the case and were represented by three lawyers: Kathleen Kessler, William Hollberg, and William Rucker. At the beginning of the trial, plaintiffs moved to amend the complaint to have Kessler added as a plaintiff. Plaintiffs did this because they felt it would be important for Kessler to testify on their behalf.[2] The district court granted plaintiffs’ motion subject to the condition that Kessler withdraw as co-counsel. Subsequently, Kessler began representing herself as an attorney pro se litigant. [4] Plaintiffs prevailed at trial and on appeal on their section 1983 claim. Duncan v. Poythress, 515 F. Supp. 327 (N.D.Ga.) aff’d, 657 F.2d 691 (5th Cir. Unit B 1981), cert. granted, 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647, cert. dismissed, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982). The trial court also awarded plaintiffs reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. Id. at 343. In an out-of-court settlement, defendants agreed to pay attorneys Hollberg and Rucker a total of $128,487 in fees, but refused to pay attorney’s fees to Kessler. Kessler then applied to the district court for fees. [5] Kessler’s application for fees and brief in support of that application were filed on behalf of “Kathleen Kessler, plaintif pro se.” These documents requested fees for the entire time Kessler worked on this case, including both the time that she was counsel of record for plaintiffs Duncan and Stout and the time that she represented herself. The application also analyzed all such time according to the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).[3] [6] The district court denied Kessler’s application for fees because she was a pro se litigant. Duncan v. Poythress, 572 F. Supp. 776 (N.D.Ga. 1983). Kessler moved for reconsideration under the theory that, even if she was not entitled to fees for the time that she represented herself, she could not be denied fees for the time that she represented the other two plaintiffs. The lower court denied Kessler’s motion

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based upon its finding that she had failed to raise this ground for recovery earlier.

[7] II. ATTORNEY’S FEES FOR LAWYER PRO SE LITIGANTS
[8] The question before this court is whether attorneys who procee pro se should be treated like other attorneys (prevailing plaintiff’s attorney(s) presumptively entitled to fees[4] ) or like lay pro se litigants (not entitled to fees) for the purposes of section 1988. [9] The court below denied Kessler’s application for fees based o Cofield v. City of Atlanta, 648 F.2d 986 (5th Cir. Unit B 1981),[5] in which the court denied fees to the plaintiff, a nonlawyer, who appeared pro se.[6] The specific issue of fees for a lawyer appearing pro se was not addressed in Cofield. Cazalas v. United States Department of Justice, 709 F.2d 1051, 1055 n. 8 (5th Cir. 1983); Ehlers v. City of Decatur, 696 F.2d 1006
(11th Cir. 1983) (unpublished opinion). Only one Court of Appeals, the Ninth Circuit, has considered the issue of whether a lawyer litigant proceeding pro se is entitled to attorney’s fees under section 1988. Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The Ellis court determined that defendants who were attorneys and who represented themselves were entitled to fees. Although Ellis is unlike the present case in that it concerned an attorney pro se defendant, the Ellis court’s reasoning is, in large part, applicable to the present case. Indeed, Ellis
was cited as persuasive authority in Rybicki v. State Board of Elections, 584 F. Supp. 849 (N.D.Ill. 1984) (three-judge court) where an attorney pro se plaintiff was granted fees under section 1988. But see Lawrence v. Staats, 586 F. Supp. 1375
(D.D.C. 1984) (attorney pro se plaintiff not entitled to fees).[7] Circuit courts are divided as to whether attorne pro se litigants are entitled to fees in contexts other than section 1988. Falcone v. Internal Revenue Service, 714 F.2d 646
(6th Cir. 1983), cert. denied, 466 U.S. 908, 104 S.Ct. 1689, 80 L.Ed.2d 162 (1984) (attorney-litigant in Freedom of Information Act (FOIA) suit denied fees); Cazalas v. United States Department of Justice, 709 F.2d 1051 (5th Cir. 1983) (attorney-litigant entitled to fees in FOIA case); White v. Arlen Realty and Development Corp., 614 F.2d 387 (4th Cir.) cert. denied, 447 U.S. 923, 100 S.Ct. 3016, 65 L.Ed.2d 1116
(1980) (fees denied attorney-litigant in Truth In Lending Act case); Cuneo v. Rumsfield, 553 F.2d 1360 (D.C. Cir. 1977)

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(FOIA attorney-litigant entitled to fees, but nonattorneys also entitled to fees in D.C. Circuit. Cox v. United States Department of Justice, 601 F.2d 1 (D.C. Cir. 1979)).[8]

[10] The plain language of section 1988 does not preclude an award of fees to a lawyer representing herself. The statute states in pertinent part:

In any action or proceeding to enforce a provision of [section] . . . 1983 . . . of this title . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.

[11] Moreover, this court has determined that section 1988 “should be accorded broad interpretation since the statute is remedial in nature.” Williams v. City of Fairburn, 702 F.2d 973, 976 (11th Cir. 1983). Thus, the absence of any express prohibition strongly suggests allowance of a fee award, unless the legislative history provides otherwise. The legislative history of section 1988 does not address this issue. [12] Absent express language in either the statute itself or its legislative history, we look to the purposes of section 1988 to determine whether granting attorney’s fees to attorney pro se
litigants would further those purposes. Defendants assert, and the lower court found, that Kessler is not entitled to attorney’s fees because “section 1988 is designed to assist average citizens who, were it not for the attorney’s fees provision, would lack the ability to effectively pursue meritorious complaints.”572 F. Supp. at 778. Although Congress certainly intended section 1988 to help those without the financial resources to hire a lawyer, to the extent that the court below relied on the rationale that section 1988 is only intended to help those who cannot otherwise afford legal assistance, such reliance is misplaced. A plaintiff’s lawyer is not denied fees under section 1988 merely because the plaintiff is able to pay for a lawyer, see, e.g., Riddell v. National Democratic Party, 624 F.2d 539, 543 (5th Cir. 1980);[9] International Oceanic Enterprises, Inc. v. Menton, 614 F.2d 502, 503 (5th Cir. 1980), or because plaintiff is not actually required to pay his or her lawyer. See, e.g., Johnson v. University College, 706 F.2d 1205, 1210 (11th Cir.) cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684
(1983); Watkins v. Mobile Housing Board, 632 F.2d 565, 567 (5th Cir. 1980); Ellis v. Cassidy, 625 F.2d at 230. Thus, the financial need of the litigant is not the determinative factor in awarding fees under section 1988.[10] [13] Moreover, contrary to the implication of defendants’ argument, the fact that Kessler is a lawyer and therefore can (and did) provide legal representation to herself, does not mean that she does not need section 1988 in order to enable her to pursue a case like the present one. Merely because plaintiff Kessler need not pay an actual fee to attorney Kessler does not mean that she is able to spend the time and pay the overhead

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involved in this case, absent at least the hope of remuneration See Cazalas, 709 F.2d at 1057.[11] In fact, preclusion of other employment by the attorney is one of the Johnson factors Johnson v. Georgia Highway Express, Inc., 488 F.2d at 718. This factor is no less relevant when the attorney is the section 1983 plaintiff rather than any other person. See Ellis, 625 F.2d at 231 (“The appellees [attorney pro se defendants] have actually suffered pecuniary loss, since they have been required to take time away from their practices to prepare and defend the suit.”);[12] Rybicki, 584 F. Supp. at 860 (A pro se
lawyer “actually suffers a pecuniary loss due to the time lost from the lawyer’s practice.”).[13] As Kessler points out, another more general purpose of section 1988 is to encourage private citizens to vindicate important constitutional and congressional policies. See S.Rep. No. 1011, 94th Cong., 2d Sess. 2-3, reprinted in 1976 U.S. Code Cong. Ad. News 5908, 5909-10; Riddell, 624 F.2d at 543. This is exactly what Kessler and her coplaintiffs did. A fee award is just as necessary to enable plaintiff Kessler to do this as it would be for a nonlawyer.

[14] Defendants also assert that, in the present case, it was not necessary for Kessler to represent herself[14] because the other two plaintiffs’ attorneys could have represented Kessler as well with no appreciable

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additional effort on their part. The problem of redundant legal services is exactly the type of issue with which the Johnson
factors are designed to deal. 488 F.2d at 717. The existence of other counsel in the case goes to the amount of fees to which Kessler may be entitled, an issue not before this court, not to her entitlement to fees as an attorney pro se litigant.

[15] Defendants’ assertions that Kessler is not entitled to fees, either because as a lawyer she has free access to the legal system or because other lawyers were available to represent her, are unpersuasive. Under either of these rationales, had Kessler retained additional counsel to represent her in this litigation, such counsel would not have been entitled to fees under section 1988. Yet, defendants admit that attorney’s fees would have been allowed to a lawyer hired by Kessler to represent her. Thus, defendants are asserting the anomalous position that Kessler could have hired any other lawyer besides Kessler and that lawyer would have been entitled to fees. A related anomaly is the fact that anyone else could have hired Kessler to be his or her lawyer and, if that plaintiff had prevailed as Kessler did here, Kessler would have been entitled to fees. [16] This second anomaly illuminates the distinction between an attorney pro se litigant and a lay pro se litigant. A la pro se litigant could not be hired by someone else to represent him or her in a section 1983 suit; an attorney pro se litigant could be. As pointed out in Cofield, the case relied on by the court below, section 1988 was enacted to “enable and encourage a wronged person to retain a lawyer.” 648 F.2d at 988;[15] see also Ellis, 625 F.2d at 231 (“Legal services have actually been performed”); Rybicki, 584 F. Supp. at 859 (“The courts [in denying lay pro se litigants fees] reason that the principal purpose of § 1988 (to encourage lay persons to retain lawyers in meritorious civil rights cases) is not furthered by compensating a nonlawyer litigant who decides to proceed pro se.”). The court below echoed these sentiments: “The primary concern of Congress was to increase the level of competence with which such complaints are prosecuted . . . .” 572 F. Supp. at 778-79; see also Lawrence, 586 F. Supp. at 1379. [17] In the case of an attorney pro se litigant such as Kessler, this congressional purpose is fulfilled. Kessler utilized a lawyer to pursue her claims; therefore, she utilized the kind of skilled advocate competent to pursue legal claims, as evidenced by a license to practice law, that the framers of section 1988 envisioned. The fact that the lawyer she chose was herself is inconsequential. Thus, although we agree with the court below that section 1988 was not passed solely for the benefit of lawyers,[16] it was passed so that plaintiffs, lay or lawyer, could have legally trained representatives in cases, like the present one, where important constitutional rights are at stake.[17]

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[18] A further distinction between a lay pro se and an attorne pro se litigant is the fact that a lay pro se litigant cannot sell legal services in the open market. Section 1988 case law tells us that the amount of fees a lawyer recovers is not what that lawyer would have actually earned in another case, but rather, what the market value for such services was. See Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891
(1984); Johnson v. Georgia Highway Express, Inc., 488 F.2d at 718. Thus, a federally funded Legal Services Corporation lawyer with the same credentials as a lawyer with a lucrative private practice is awarded the same fee under section 1988. See, e.g., Johnson v. University College, 706 F.2d at 1210; Watkins, 632 F.2d at 567. The lay litigant’s services have no market value as legal services since a lay person cannot sell legal services in the marketplace. In addition, the Johnson factors include opportunity costs, 488 F.2d at 718, and such costs would be much more complicated to evaluate for the lay litigant. See Cazalas, 709 F.2d at 1057;[18] Ellis, 625 F.2d at 231. [19] Several policy arguments have been raised to support denying fees to attorney pro se litigants, none of which we find persuasive. First, it has been claimed that a lawyer representing himself or herself lacks the objectivity necessary to provide a check against groundless or frivolous litigation.[19] As th Cazalas court found in regard to FOIA, however, section 1988 was not enacted to ensure objective representation, but rather, to promote vigorous advocacy. 709 F.2d at 1056. Counsel representing plaintiffs are often committed to a certain social ideology and thus are not totally independent or objective. In addition, a lawyer-litigant, like any other lawyer, only receives compensation if he or she prevails. A groundless case, of course, would not prevail. Moreover, a lawyer who brings a frivolous suit may be liable for defendants’ attorney’s fees under the standard set out by the Supreme Court in Christiansberg Garment Company v. E.E.O.C., 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978) (“a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith”).[20] See also Fed.R.Civ.P. 11
(lawyer, or party if unrepresented, must sign every pleading, motion, or other paper certifying that, to the best of the signer’s knowledge, it is well grounded in fact and warranted by law or a good faith argument to change existing law, and is not brought for any improper purpose; paper signed contrary to the rule subjects lawyer, party, or both, to sanctions including paying other party’s expenses, attorney’s fees); Fed.R.App.P. 38
(if court of appeals determines that an appeal is frivolous, it may award just damages

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and single or double costs to the appellee).

[20] A second argument against awarding fees to attorney pro se
litigants stems from the fear that a cottage industry will develop among inactive attorneys who will bring section 1983 cases to support themselves. We think this fear is unfounded. Again, only a prevailing attorney will receive remuneration, and attorneys who bring frivolous suits face numerous sanctions. Because an attorney is compensated according to the Johnson
factors which include legal experience and reputation, an inactive attorney would be compensated at a low rate. Moreover, if applying section 1988 to lawyers who represent themselves encourages lawyers to search for violations of constitutional and statutory rights and then seek to vindicate those rights, such application is not contrary to the purposes of the statute. See Dowdell v. City of Apopka, 698 F.2d 1181, 1189, n. 12 (11th Cir. 1983) (section 1988 is designed “to induce and encourage litigation on the theory that litigants acting as `private attorneys general’ may help to enforce important congressional policies”). Finally, in the present case, Kessler tried to avoid litigation by requesting defendants to call a special election. Although not forced into this litigation in the same sense as was the defendant in Ellis, Kessler was required to bring suit if she wanted to vindicate her important right of franchise. Thus, we conclude that Kessler is entitled to fees for the period in which she represented herself as an attorney pro se
litigant.[21]

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[21] III. FEES FOR PERIOD KESSLER REPRESENTED THE OTHER PLAINTIFFS
[22] In its discussion of the merits, the lower court ordered that “plaintiffs shall recover . . . all reasonable attorney’s fees from the defendants for time spent litigating this action. 42 U.S.C. § 1988.” 515 F. Supp. at 343.[22] When defendants refused to pay her for her work, Kessler applied to the court for fees. In her petition for fees, Kessler did not distinguish between time spent representing herself and time spent representing the other plaintiffs. As defendants point out, Kessler did not mention the fact that she represented others as a theory for recovery; rather, she only asserted that “[p]laintiff attorney Kessler, representing herself, may recover attorney’s fees.” [23] The lower court denied Kessler’s application for fees based on her position as a pro se litigant without commenting on the time that she spent representing the other plaintiffs. Kessler’s motion for reconsideration dealt solely with the time that she spent representing the plaintiffs Duncan and Stout. The court below denied this motion, stating that it “has not been informed of the reason Kessler failed to raise previously this issue as to her entitlement to a recovery of fees. . . .” Duncan v. Poythress, No. C81-199A, slip op. at 2 (N.D.Ga. Dec. 22, 1983), and that Kessler was now attempting to “raise a different ground for recovery. . . .” Id. Although Kessler could have made her fee application clearer, we find that the lower court abused its discretion by using this ambiguity to deny Kessler fees for the hours that she represented the other plaintiffs. The court’s finding that, in her first application, Kessler did not apply for fees for the time that she represented the other plaintiffs, was clearly erroneous. A fee application need not assert a theory or ground supporting recovery; rather, it need only document the hours spent — which Kessler’s application did.[23] This is so, not only because prevailing plaintiffs are presumptively entitled to fees under section 1988,[24] but also because plaintiffs in the present case had already been granted attorney’s fees. 515 F. Supp. at 343. Kessler reasonably assumed that the question of fees for the time that she represented the other plaintiffs was not in issue. Thus, Kessler is entitled to fees for the period in which she represented plaintiffs Duncan and Stout. [24] For the foregoing reasons, the judgment of the district court is REVERSED and this case is REMANDED for a determination of the amount of Kessler’s fee award. [25] GODBOLD, Chief Judge, dissenting: [26] The court took this case en banc to decide a legal question. It turns out that the case is not a proper vehicle for decision. The facts have not been sufficiently developed for the court to decide the case with assurance of correctness. [27] I would remand this case to the panel for proper handling of the § 1988 issue, which would entail the parties stipulating to the facts or a remand to the district court for development of an adequate record covering what happened in the district court and

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in the Supreme Court. Without such a record we do not know whether the issue on which we took the case en banc is properly before us.

[28] Establishing Kathleen Kessler’s status as attorney for herself, in the district court or in the Supreme Court, or both, is a prerequisite for decision of the attorney fee issue. We do not know with certainty whether Kessler served as attorney for herself in the district court after she withdrew as co-counsel and was added as plaintiff. The parties are in dispute about this. The en banc court does not directly address whether as a matter of fact Kessler filed an appearance for herself in the district court, whether she performed acts as an attorney, whether the district court was aware that she purported to represent herself, or whether the district court, if unaware, would have permitted such representation if made aware. [29] The court refers to Kessler’s having filed a brief for herself pro se before the Supreme Court. We do not know whether that Court labored under the same lack of facts concerning events in the district court that we labor under. Whether the Supreme Court, armed with all the facts, would have permitted Kessler to appear, and whether it might now say that her appearance was proper, are matters to which we do not know the answer. [30] The court finesses the issue of the stage at which Kessler began representing herself by punting to the district court on remand. See footnote 14. The instruction to the district court, in footnote 14, that it must make a finding as to the stage in the proceeding at which Kessler began representing herself leaves open the possibility that the district court may find that at no time did Kessler ever represent herself in the district court. While not specifically stated in the court’s opinion, I assume that the district court also may find that Kessler did not represent herself in the Supreme Court, or if she attempted to do so that the attempt was not proper (for reasons stated in the “Second” point, below, or for any other reasons based upon presently unknown events in the district court or the Supreme Court). [31] Second, in a situation where we do not know what actually occurred in the district court, the en banc court is intervening in a matter involving district court policy. Initially the district judge thought that Kessler should not be both attorney and witness; it has not been contended that the district court’s order requiring her withdrawal as co-counsel was erroneous. If the district court has not had an opportunity to rule on whether it would permit her to reappear (as counsel for herself) despite its prior and uncontested ruling that she could not be both counsel and witness, it is entitled to the first chance to rule. [32] RONEY, Circuit Judge, dissenting, in which HENDERSON, Circuit Judge, joins:

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”

Alice was too much puzzled to say anything; . . .[1]

[33] Although not too puzzled to say anything, I am puzzled enough to say very little. [34] The sole source for the imposition of liability against the defendant for the prevailing plaintiff’s attorney’s fees in this case is 42 U.S.C.A. § 1988. There Congress provided that in a suit such as this to enforce a provision of 42 U.S.C.A. § 1983, “the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” [35] This case turns on the meaning of the word “attorney.” Although the majority believes the “plain language” of section

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1988 “does not preclude an award of fees to a lawyer representing herself,” we have simply been unable to find any definition which permits a decision that a pro se lawyer has an attorney. Set forth in an Appendix to this opinion are the definitions found in over two dozen dictionaries. Without exception they define the word “attorney” in terms of someone who acts for another,
someone who is employed as an agent to represent another,
someone who acts at the appointment of another. A basic principle of agency law is that “[t]here is no agency unless one is acting for and in behalf of another, since a man cannot be the agent of himself.” 2A C.J.S. Agency § 27, at 592. For there to be an attorney in litigation there must be two people. Plaintiff here appeared pro se. The term “pro se” is defined as an individual acting “in his own behalf, in person.”[2]
By definition, the person appearing “in person” has no attorney, no agent appearing for him before the court. The fact that such plaintiff is admitted to practice law and available to be an attorney for others, does not mean that the plaintiff has an attorney, any more than any other principal who is qualified to be an agent, has an agent when he deals for himself. In other words, when applied to one person in one proceeding, the term “pro se” and “attorney” are mutually exclusive.

[36] Of course, sometimes, like Humpty Dumpty, courts do play the master. See United States v. American Trucking Association, 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940). But when Congress has chosen words with discernible “plain meaning,” it is neither necessary nor proper for courts to do so. “Where the language of a statute is not ambiguous and does not lead to absurd results, the job of the courts is to apply it as written.” Arline v. School Bd. of Nassau County, 772 F.2d 759, 762 (11th Cir. 1985).[3] [37] There is little support anywhere upon which to rest a decision contrary to the common definition of the words used by Congress in this statute. The majority recites legislative history to justify giving pro se litigants attorney’s fees in the name of furthering the purposes of the Act. If one cabins the word attorney by its dictionary definition, however, there is not a shred of evidence that Congress would treat pro se litigants who happen to be attorneys differently from pro se litigants of other vocations, businesses or professions. Differences in qualification between attorneys and non-attorney pro se
litigants would seem of little analytical use because in both instances the pro se party has necessarily prevailed in the litigation, just to make an attorney’s fees claim under section 1988. What a pro se plaintiff does for a living should be irrelevant for purposes of section 1988 analysis. The costs to an attorney in representing herself may in many instances be no greater than the costs to pro se litigants of other vocations taking time from their regular work to represent themselves. To argue that an attorney can be an attorney for herself, but a non-attorney cannot because she is not an attorney, is syllogistic at best, and at worst a path to a result without regard to the meaning of words. [38] A pro se lawyer who attempts to act the attorney, rather than a party, has ethical problems not faced by the non-professional. Only if Congress passes a statute to permit all pro se parties, or pro se attorneys only, to obtain fees for themselves, however, should we be required to address the ethical and legal issues arising from attorneys testifying, attorneys receiving special treatment and non-attorneys receiving attorney’s fees.

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[39] Here, plaintiff is by profession an attorney. In this case, however, she appeared pro se. She had no attorney representing her in this litigation. Since she had no attorney, the defendant should not have to pay any attorney’s fees. [40] I see no objection, however, to the award of attorney’s fees earned while the plaintiff was an attorney, representing another, prior to her becoming a party herself. APPENDIX

American Heritage Dictionary 140 (Second College Ed. 1982):

attorney . . . A person legally appointed to act for
another, esp. an attorney at law.

attorney at law . . . One who is qualified to
represent clients in a court of law and to advise
them on legal matters; a lawyer.

American Heritage Dictionary of the English Language 85 (1969):

attorney . . . A person legally appointed or
empowered to act for another; especially an attorney
at law. . . .

attorney at law. One who is qualified to represent a
party in a court of law and to prepare and manage his
case; a lawyer.

Black’s Law Dictionary 117-18 (5th ed. 1979):

ATTORNEY. In the most general sense this term denotes
an agent or substitute, or one who is appointed and
authorized to act in the place or stead of another. .
. . In its most common usage, however, unless a
contrary meaning is clearly intended, this term means
“attorney at law”, “lawyer” or “counselor at law” . .
. .

The word “attorney” includes a party prosecuting or
defending an action in person . . . .

Attorney at law. Person admitted to practice law in
his respective state and authorized to perform both
civil and criminal legal functions for clients,
including drafting of legal documents, giving of
legal advise, and representing such before courts,
administrative agencies, boards, etc.

Bouvier’s Law Dictionary (Unabridged) 282-86 (Vol. I 1914):

ATTORNEY. One put in the place, turn, or stead of
another, to manage his affairs; one who manages the
affairs of another by direction of his principal. . ..

One who acts for another by virtue of an
appointment by the latter. . . .

Attorney in fact. A person to whom the authority of
another, who is called the constituent, is by him
lawfully delegated. . . .

All persons who are capable of acting for themselves, and even
those who are disqualified from acting in their own capacity,
if they have sufficient understanding, as infants of a proper
age, and femes coverts, may act as attorneys of others; . . .

Attorney-at-law. An officer in a court of justice
who is employed by a party in a cause to manage the
same for him.

Britannica World Language Ed., Funk Wagnalls New Practical
Standard Dictionary 93 (1957):

attorney . . . A person empowered by another to act
in his stead; especially, one legally qualified to
prosecute and defend actions in a court of law; an
attorney at law; a lawyer. . . . An agent.

attorney at law. An attorney who is qualified to
prosecute and defend actions in a court of law; . . .

Century Dictionary Cyclopedia 374 (Vol. I A-B 1913) and 374
(Vol. I A-C 1911):

attorney . . . 1. One who is appointed by another to
act in his place or stead; a proxy . . . .

Specifically — 2. In law, one who is appointed or
admitted in the place of another to transact any
business for him. . . . An attorney at law,
sometimes called a public attorney, is a person
qualified to appear for another before a court of law
to prosecute or defend an action on behalf of such
other. . . .

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attorney . . . The appointment of another to act in
one’s stead; the act of naming an attorney. . . .

Chambers Twentieth Century Dictionary 66 (1956):

attorney . . . one legally authorized to act for
another: one legally qualified to manage cases in a
court of law. . . .

Comprehensive Etymological Dictionary of the English Language
125 (1966):

attorney . . . one authorized to act for another. . ..

Concise Etymological Dictionary of Modern English 27 (1952):

attorney . . . to appoint, constitute. . . . Orig.
one duly appointed to act for another.

Concise Oxford Dictionary 60 (1976):

attorney . . . One appointed to act for another in
business or legal matters . . . qualified lawyer,
esp. representing client in proceedings. . . .

Dictionary of Obsolete English 17 (1958):

Attorney. Seldom used now except of the attorney at
law; being one, according to Blackstone’s
definition, `who is put in the place, stead, or
turn of another to manage his matters of law;’ and
even in this sense it is going out of honour, and
giving way to `solicitor.’ But formerly any who in
any cause acted in the room, behalf, or turn of
another would be called his `attorney:’ thus Phillips
(New World of Words) defines attorney, `one
appointed by another man to do anything in his stead,
or to take upon him the charge of his business in his
absence;’ . . .

Dictionary of Word Origins 32 (1945):

attorney . . . If you were in trouble, or were going
away, you would select someone to turn to . . . to
represent you; this man was your attorney. Its
first meaning was, one assigned to act for another;
as still in the expression, power of attorney. When
you take a detour, of course, you turn away form
the main path.

Funk Wagnalls Encyclopedic College Dictionary 94 (1968):

attorney . . . A person empower by another to act in
his stead; especially an attorney at law. . . .

attorney at law An attorney who is qualified to
prosecute and defend actions in a court of law;
lawyer.

Harper Dictionary of Contemporary Usage 54 (1975):

attorney/attorney at law The former is a term that
includes all kinds of lawyers. The latter
specifically refers to a lawyer who is qualified to
represent his clients in a court of law.

Lexicon Webster Dictionary 65 (Vol. One A-Oyster 1976):

attorney . . . A legal agent who represents a client
in legal affairs; a lawyer; one who is legally
appointed or admitted in the place of another to
transact any business for him.

Oxford American Dictionary 39 (1980):

attorney . . . a lawyer, especially one qualified to
represent or act for persons in legal proceedings.

Oxford Dictionary of English Etymology 61 (1966):

attorney . . . legal agent.

Oxford English Dictionary 553-54 (Vol. I A-B 1933):

Attorney . . . 1. One appointed or ordained to act
for another; an agent, deputy, commissioner. In later
times only fig. and perhaps with conscious
reference to sense. . . . 2. (Attorney in fact,
private attorney.) One duly appointed or constituted
. . . to act for another in business and legal
matters, either generally, as in payment, receipt,
and investment of money, in suing and being sued,
etc., or in some specific act, which the principal,
by reason of absence, is unable to perform in person.
Hence the contrast between `in person’ and `by
attorney,’ frequent also in fig. senses. . . . 3.
(Attorney-at-Law, public attorney.) A professional
and properly-qualified legal agent practicing in the
courts of Common Law . . . one who conducted
litigation in these courts, preparing the case for
the barristers,

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or counsel, whose duty and privilege it is to plead
and argue in open court. . . .

Oxford Illustrated Dictionary 45 (1962):

attorney . . . One appointed to act for another in
business in legal matters.

Oxford Universal Dictionary 120-21 (1933):

Attorney . . . 1. . . . `one appointed,’ . . . `one
who acts in the turn of another’ . . . . 1. One
appointed to act for another, an agent, deputy,
commissioner. . . . 2. (Attorney in fact, private
attorney.) One duly appointed or constituted . . .
to act for another in business and legal matters,
either generally, or in some specific act. . . .
3. (Attorney-at-law, public attorney.) A
properly-qualified legal agent practicing in the
courts of Common Law . . . one who conducts
litigation in these courts, preparing the case for
the barristers, who plead in open court. . . .

Attorney . . . 2. . . The action of appointing a
legal representative, procuration. . . .

Attorney . . . to perform by attorney.

Random House Dictionary of the English Language (Unabridged) 96
(1967):

attorney . . . 1. a lawyer; attorney-at-law. 2. an
attorney-in-fact, agent. . . . one (who is) turned
to, i.e., appointed. . . . attorney-at-law . . . an
officer of the court authorized to appear before it
as a representative of a party to a legal
controversy.

Shorter Oxford English Dictionary 120-21 (1933):

Attorney . . . 1. . . . `one appointed’, . . . `one
who acts in the turn of another’. . . . 1. One
appointed to act for another; an agent, deputy,
commissioner . . . 2. (Attorney in fact, private
attorney.) One duly appointed or constituted . . .
to act for another in business and legal matters,
either generally, or in some specific act. . . .
3. (attorney-at-law, public attorney.) A
properly-qualified legal agent practicing in the
courts of Common Law . . .; one who conducts
litigation in these courts, preparing the case for
the barristers, who plead in open court. . . .

Attorney . . . 2. . . The action of appointing a
legal representative, . . . procuration . . . .

Attorney . . . To perform by attorney. . . .

Webster’s Seventh New Collegiate Dictionary 57 (1969):

attorney . . . one who is legally appointed by
another to transact business for him; . . . a legal
agent qualified to act for suitors and defendants in
legal proceedings. . . .

Webster’s Third New International Dictionary 141 (1960):

attorney . . . one who is legally appointed by
another to transact any business for him; . . . a
legal agent qualified to act for suitors and
defendants in legal proceedings. . . .

attorney-at-law . . . a practitioner in a court of
law who is legally qualified to prosecute and defend
actions in such court on the retainer of clients. . ..