Compilation of Rules and Regulations of the State of Georgia › Department 189 - RULES OF STATE ETHICS COMMISSION › Chapter 189-2 - PRACTICE AND PROCEDURE › Rule 189-2-.11 - Rules of Procedure - Seeking an Award of Attorney's Fees

Current through Rules and Regulations filed through June 27, 2024
The Commission shall assess reasonable and necessary attorney's
				fees and expenses of litigation in any administrative action pending before the
				Commission, upon the motion of the Respondent or the Commission itself, if it
				finds that a Complainant or the Complainant's counsel filed a Complaint, or any
				related pleading thereto, that is frivolous, which shall include, but not be
				limited to, a complaint or pleading that lacks a Legal Basis, Legal Merit, or
				factual basis to support the claims made therein.
(1) Whenever a Respondent desires to seek an
			 award of attorney's fees against a Complainant pursuant of O.C.G.A. §
								21-5-6(b)(23)  on
			 the grounds that the latter filed a complaint that was frivolous, the
			 Respondent and Complainant shall comply with, to the extent practicable, the
			 following rules of procedure.
(a) Respondent
			 may include in their initial answer to the Complaint,
inter
			 alia
, a request for attorney's fees pursuant to O.C.G.A. §
									21-5-6(b)(23).
(b) In the alternative, Respondent may also
			 file, at any time before a final judgment in said case is rendered by the
			 Commission, a separate motion requesting attorney's fees pursuant to O.C.G.A.
			 §
									21-5-6(b)(23). If
			 the Respondent is filing a separate motion, said motion shall comply with
			 subsection (d) of this rule as detailed below.
(c) The Respondent's request (either by
			 responsive pleading or separate motion) shall include, but not be limited to,
			 the following:
1. A clear and concise
			 statement of the facts upon which the Respondent asserts to support their claim
			 that the complaint lacks a Legal Basis, Legal Merit, or factual basis to
			 support the claims made therein against them.
2. A clear and concise statement of the legal
			 argument upon which the Respondent asserts to support their claim that the
			 complaint lacks a Legal Basis, Legal Merit, or factual basis to support the
			 claims made therein against them.
3. A clear and concise statement as to the
			 amount of attorney's fees that are being requested. Said statement shall be
			 accompanied by, but not limited to, a copy of the Respondent's outstanding
			 attorney's fee invoice that has been received as of the date of the request.
			 Moreover, the Respondent shall update their request, if applicable, by
			 submitting a copy of their current attorney's fee invoice within 48 hours of
			 the hearing on their request for attorney's fees.
(d) If the Respondent files a separate motion
			 requesting attorney's fees pursuant to O.C.G.A. §
									21-5-6(b)(23),
			 said motion shall be filed directly with the Commission and an exact copy of
			 said motion shall also be served upon the Complainant (at the Complaint's last
			 known address as contained in the Complaint filed with the Commission) by the
			 Respondent. Service shall occur concurrently with the filing of said motion
			 with the Commission. Service of the motion requesting attorney's fees shall be
			 considered effectuated upon the Complainant by the transmittal of said motion
			 via regular U.S. mail or via standard commercial carrier to include, but not
			 limited to, UPS and FedEx.
(e) If
			 the Respondent files a written request for attorney's fees (either by motion,
			 answer or responsive pleading), the Complainant shall be afforded an
			 opportunity to file a written response to the Respondent's written request for
			 attorney's fees, said response period shall be no less than fifteen (15)
			 business days from the date of service of the Respondent's written request for
			 attorney's fees with the Commission. The Complainant's written response shall
			 be filed directly with the Commission and an exact copy of said response shall
			 also be served upon the Respondent (at the Respondent's last known address as
			 contained in the Respondent's answer, responsive pleading or motion requesting
			 attorney's fees) by the Complainant, said service shall occur concurrently with
			 the filing of said response with the Commission. Service of the written
			 response shall be considered effectuated upon the Respondent by transmittal of
			 said response via regular U.S. mail or via standard commercial carrier to
			 include, but not limited to, UPS and FedEx. Any response in opposition to the
			 Respondent's request for attorney's fees shall include, but not be limited to,
			 the following:
1. A clear and concise
			 statement of the facts upon which the Complainant asserts to support their
			 claim that the complaint does not lack a Legal Basis, Legal Merit, or factual
			 basis to support the claims made therein against the Respondent.
2. A clear and concise statement of the legal
			 argument upon which the Respondent asserts to support their claim that the
			 complaint does not lack a Legal Basis, Legal Merit, or factual basis to support
			 the claims made therein against the Respondent.
(f) Attorney's fees awarded pursuant to
			 O.C.G.A. §
									21-5-6(b)(23) 
			 and the applicable rules of the Commission shall not exceed the amounts which
			 are reasonable and necessary for defending or asserting the rights of the
			 Respondent. Further, no award for attorney's fees shall exceed the actual
			 amount of attorney's fees that were expended by the Respondent in the case
			 constituting the grounds for the request for attorney's fees.
(g) No Complainant and no attorney
			 representing same shall be assessed attorney's fees as to any claim which the
			 Commission determines was asserted by said Complainant or attorney in a Good
			 Faith attempt to establish a new theory of law in Georgia if such new theory of
			 law is based on some recognized precedential or persuasive authority. Further,
			 the Commission shall judge whether a complaint or subsequent pleading is
			 frivolous based upon the information that was publicly available to the
			 Complainant at the time the complaint or subsequent pleading was made, and not
			 upon information that was subsequently discovered by the Commission's staff in
			 their investigation.
(h) An award
			 of attorney's fees under these rules and pursuant to O.C.G.A. §
									21-5-6(b)(23)
			  shall be determined by an order of Commission
			 and said order shall be reduced to writing by Commission staff at the
			 conclusion of the Commission's hearing. Further, any such order awarding
			 attorney's fees shall constitute a binding order of the Commission subject to
			 further enforcement as provided by Georgia law.