Departing from nearly 40 years of practice, the Idaho Supreme Court recently announced courts must follow a 1976 statute giving courts broad discretion in awarding attorney fees to the prevailing party. This new standard for awarding attorney fees to the prevailing party would apply to any type of lawsuit unless that lawsuit is brought under a specific law that addresses attorney fees for that type of lawsuit.
Idaho Code section 12-121 states in part, “[i]n any civil action, the judge may award reasonable attorney’s fees to the prevailing party or parties, provided that this section shall not alter, repeal or amend any statute which otherwise provides for award of attorney’s fees.” Since 1979, Idaho courts applied a “frivolous” standard requiring proof the lawsuit was “brought, pursued or defended frivolously, unreasonably or without foundation.” The “frivolous” standard was adopted by the Idaho Supreme Court over concerns the Code standard would create “judge shopping” and would not be applied uniformly. Effective March 1, 2017, the Code standard provides no limitations on a court’s discretion when awarding attorney fees to a prevailing party. Unless the Legislature changes the Code, Idaho litigants can expect to see an increase in requests for attorney fees.