Recovery Attorney’s Fees In Criminal Cases

Las Vegas Attorney

In the past, it has not been possible for a criminal defendant to recover their attorney’s fees upon acquittal or dismissal of the charges. However, in some instances that is about to changed. The Nevada Legislature recently passed a statute allowing for a criminal defendant to recover their attorney’s fees if it is shown that the position of the State (prosecution) was vexatious, frivolous or in bad faith. The amended statute will become effective on October 1, 2015 and is applicable only to criminal actions that are pending on that date or are brought after that date.

Under what is called the “American Rule” each party to a legal proceeding is generally expected to pay its own attorney’s fees and litigation expenses regardless of the outcome of the case.   Federal Law, however, establishes an exception to the American Rule under the Hyde Amendment, which enables a party who is acquitted or otherwise prevails against the Federal Government in a criminal action, and who meets certain eligibility requirements, to recover some or all of the attorney’s fees and other litigation expenses incurred by the party if a court determines that the Federal Government’s position in the action was vexatious, frivolous or in bad faith. Federal law also requires that any award must be paid by the particular agency. Chapter 41 of the Nevada Revises Statutes, as amended, adopts various provisions, modeled after the federal law.

HOW IT WORKS: A prevailing party that wishes to obtain an award pursuant to the amended statute must, within 30 days of the judgment in the criminal action, submit an application for attorney’s fees and litigation expenses. The application must include a showing that the applicant was the prevailing party and is eligible to receive an award. It must also include an allegation that the position of the State was vexatious, frivolous or in bad faith and must also state the amount of fees sought, accompanied by an itemized statement from an attorney, expert witness, or other person that represented or appeared in the criminal action on behalf of the applicant. However, it should be noted that a prevailing party that was represented by the Public Defender’s office or other appointed counsel whose expenses were paid by the public are not eligible for an award under the statute.

A PREVAILING PARTY: A defendant prevails over the State in a criminal action if the defendant is acquitted or obtains a dismissal with prejudice of all or substantially all charges brought against the defendant in the criminal action. The defendant also prevails if the defendant obtains a dismissal without prejudice of all or substantially all charges brought against the defendant in the criminal action or if a mistrial is declared, so long as it is not the result of circumstance attributable to the defendant, but only if the court finds it unlikely that a new criminal action will be brought against the defendant with respect to those charges.

VEXATIOUSNESS: Vexatious prosecution by the State is prosecution that is without reasonable or probable cause or excuse. It is not easily proven. To establish that the government’s prosecution was vexatious, a petitioner must show that the criminal case was objectively deficient, in that it lacked either legal merit or factual foundation. The petitioner must also show that the government’s conduct, when viewed objectively, manifests maliciousness or intent to harass or annoy.

FRIVOLOUS: Criminal prosecution is frivolous if it is groundless with little prospect of success. A case is frivolous when the government’s position is foreclosed by binding precedent or is obviously wrong. However, the government is allowed to base a prosecution on a novel argument, so long as it is a reasonable one, without fear that it might be setting itself up for liability under the Hyde Amendment. Thus, a frivolous position can be distinguished from a vexatious one in that the term vexatious embraces the distinct concept of being brought for the purpose of irritating, annoying, or tormenting the opposing party.

BAD FAITH: Bad faith on the part of the State means not simply bad judgment or negligence, but rather it implies the conscious doing of wrong because of dishonest purpose of moral obliquity. It contemplates a state of mind affirmatively operating with furtive design of ill will.

An example of bad faith can be illustrated in a common scenario that plays out in Clark County on a regular basis. Law enforcement obtains a search warrant by convincing the judge that the cardholder’s purportedly excessive use of electricity constitutes probable cause that the residence is being used for an illegal grow operation. During the discovery phase of the case, it is disclosed that an administrative subpoena was issued by the Las Vegas Metropolitan Police Department to the utility company for the home of the cardholder and several of the neighboring residences. The information obtained via Improper Use of Utility Bills officer and is improperly used to obtain a search warrant by presenting the evidence in a misleading way. Further, the police illegally accessed the MMJ patient registry. These abuses, if known to the prosecutor who nonetheless continues to prosecute the case, are the type of actions which can be considered bad faith, leading to the award of attorney’s fees, irrespective of guilt.

This amended statute is a significant step in the right direction toward reducing the number of frivolous charges or vexatious or bad faith prosecutions in Nevada and is a powerful tool now available to defendant and their attorneys in reaching more favorable outcomes in criminal cases. If you have been charged with a crime that you believe is frivolous, vexatious or brought in bad faith you need a knowledgeable attorney to represent you. With nearly twenty-five years of experience in criminal defense, The Wright Law Group, P.C. is well equipped to assist you. Please call us at 702-405-0001 to schedule a consultation.