Fraser Trebilcock Davis & Dunlap Pc v. Boyce Trust 2350

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis

FRASER TREBILCOCK DAVIS & DUNLAP PC v BOYCE TRUST 2350

Docket Nos. 148931, 148932, and 148933. Argued January 15, 2015. Decided June 3, 2015.

Fraser Trebilcock Davis & Dunlap, PC, brought an action for breach of contract in the
Midland Circuit Court against Boyce Trust 2350, Boyce Trust 3649, and Boyce Trust 3650, after
defendants failed to pay plaintiff in full for legal services its member lawyers had rendered. The
case was tried by a jury after defendants rejected a case evaluation of $60,000. The jury found in
plaintiff’s favor, and the trial court, Jonathan E. Lauderbach, J., entered a judgment of
$73,501.90. Defendants moved for a new trial, and plaintiff moved for case-evaluation sanctions
under MCR 2.403(O), including a reasonable attorney fee under MCR 2.403(O)(6)(b). The trial
court denied defendants’ motion for a new trial and granted plaintiff’s motion for case-evaluation
sanctions, awarding plaintiff $80,434 in attorney fees, plus interest, and also allowed plaintiff to
seek supplemental fees for time spent litigating the sanctions request. Plaintiff sought
$38,566.50 in such fees and the court awarded $21,253.60, plus interest, resulting in a total
award of approximately $102,000. Defendants appealed the judgment and both of the sanctions
orders, and the appeals were consolidated. The Court of Appeals, FITZGERALD and BORRELLO,
JJ. (MURPHY, C.J., concurring in part and dissenting in part), affirmed the judgment for plaintiff
and partially affirmed the award of case-evaluation sanctions, but reversed the award to the
extent it encompassed services related to the pursuit of case-evaluation sanctions and remanded
to the trial court for recalculation of the award amount. 304 Mich App 174 (2014). Plaintiff
appealed in the Supreme Court, which ordered and heard oral argument on whether to grant the
application for leave to appeal or take other peremptory action. 497 Mich 873 (2014).

In a unanimous opinion by Justice MCCORMACK, the Supreme Court held:

Plaintiff could not recover a reasonable attorney fee under MCR 2.403(O)(6)(b) for the
legal services performed by its member lawyers in connection with its suit to recover unpaid
attorney fees from defendants. Because the requisite distinction in identity between plaintiff and
its member lawyers was lacking, there was no attorney-client relationship from which an
attorney fee could arise.

1. Under MCR 2.403(O)(6)(b), if a party has rejected a case evaluation and the action
proceeds to verdict, that party must pay the opposing party’s actual costs, including a reasonable
attorney fee for services necessitated by the rejection of the evaluation, unless the verdict is more
favorable to the rejecting party than the case evaluation. The meaning of the phrase “attorney
fee” was addressed in Omdahl v West Iron Co Bd of Ed, 478 Mich 423 (2007), which held that
the term “attorney” requires an agency relationship between an attorney and the client whom he
or she represents and, with that relationship, separate identities between the attorney and the
client. Because, in the case of an individual attorney-litigant, the requisite distinction in identity
between attorney and client is lacking, there is no attorney-client relationship from which an
attorney fee may arise. This rationale applied to and foreclosed plaintiff’s request for attorney
fees under MCR 2.403(O)(6)(b). Although plaintiff, as a corporation, was a legal entity distinct
from its shareholders, and although plaintiff used its member lawyers as agents to litigate its
interests in this suit, plaintiff routinely identified itself as its attorney throughout the litigation,
and the record betrayed no distinction between the firm and the member lawyers who appeared
on its behalf. This conflation of identity was consistent with MCR 2.117(B)(3)(b), under which
the appearance of plaintiff’s member lawyers was tantamount to the appearance of every
member of the firm. There was also no indication that plaintiff’s member lawyers viewed or
treated plaintiff as a client distinct from themselves. The nature of the fee plaintiff sought, which
was remuneration for the legal services that it was forced to direct to the instant suit rather than
to its clients by virtue of the defendants’ rejection of the case evaluation, confirmed that
plaintiff’s fee request was analogous to, and no more recoverable than, that of an individual
attorney-litigant.

2. Michigan law does not prohibit a corporation such as plaintiff from representing itself.
While a corporation generally may appear in court only through licensed counsel, and plaintiff,
as a professional corporation, could only provide legal services through its duly licensed officers,
employees, and agents under MCL 450.1285(1), those propositions limited, but did not
eliminate, plaintiff’s ability to represent itself; nor did it mean that plaintiff necessarily entered
into the sort of relationship with its member lawyers that would be sufficient to support the
recovery of an attorney fee under Omdahl.

3. The holding in this case was not at odds with Kay v Ehrler, 499 US 432 (1991), which
held that an attorney who successfully represented himself in a civil-rights action was not
entitled to recover attorney fees under 42 USC 1988(b) as part of his costs. Although some
federal circuits have relied on a footnote in Kay to conclude that law firms represented by their
own member lawyers may recover attorney fees for that representation, the footnote was
nonbinding dictum that sought to reconcile an aspect of 42 USC 1988 with Kay’s central holding
and was not applicable to the circumstances of this case.

Court of Appeals judgment reversed in part; trial court order awarding attorney fee
vacated; case remanded to the trial court for further proceedings.

OPINION Robert P. Young, Jr. Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein

FILED June 3, 2015

STATE OF MICHIGAN

SUPREME COURT

FRASER TREBILCOCK DAVIS &
DUNLAP PC,

Plaintiff-Appellee,

v Nos. 148931; 148932;
148933

BOYCE TRUST 2350, BOYCE TRUST
3649, and BOYCE TRUST 3650,

Defendants-Appellants.

BEFORE THE ENTIRE BENCH

MCCORMACK, J.

Before us is whether the plaintiff law firm can recover, as case-evaluation

sanctions under MCR 2.403(O)(6)(b), a “reasonable attorney fee” for the legal services

performed by its own member lawyers in connection with its suit to recover unpaid fees

from the defendants, former clients of the firm. Contrary to the determinations of the

trial court and the Court of Appeals majority, we conclude it cannot. Accordingly, we

reverse the Court of Appeals in part, vacate the trial court’s award of a “reasonable
attorney fee” to the plaintiff under MCR 2.403(O)(6)(b), and remand to the trial court for

further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Fraser Trebilcock Davis & Dunlap, P.C. (“Fraser Trebilcock”), is a

law firm organized as a professional corporation under the laws of Michigan. Fraser

Trebilcock provided legal services to the defendants, a group of trusts, in connection with

the financing and purchase of four hydroelectric dams. Dissatisfied with the

representation they received, the defendants refused to pay the full sum of fees billed by

Fraser Trebilcock. To recover these unpaid fees, Fraser Trebilcock brought the instant

suit against the defendants for breach of contract. Pursuant to MCR 2.403, the matter

was submitted for a case evaluation, which resulted in an evaluation of $60,000 in favor

of Fraser Trebilcock. Fraser Trebilcock accepted the evaluation, but the defendants

rejected it. The case proceeded to trial, resulting in a verdict for Fraser Trebilcock and a

judgment totaling $73,501.90.

Throughout the litigation of this breach-of-contract action, Fraser Trebilcock

appeared through Michael Perry, a shareholder of the firm, and other lawyers affiliated

with the firm (collectively, “member lawyers”). 1 At no point did Fraser Trebilcock retain

outside counsel, and there is no indication that the firm entered into a retainer agreement

with its member lawyers or received or paid a bill for their services in connection with

1
According to Fraser Trebilcock, all member lawyers of the firm, including its
shareholders, are salaried employees of the firm.

2
the litigation. On its pleadings, Fraser Trebilcock identified the firm itself as “Attorneys

for Plaintiff.”

After receiving the verdict, the parties filed posttrial motions: the defendants

moved for a new trial, and Fraser Trebilcock moved for case-evaluation sanctions under

MCR 2.403(O), seeking to recover, inter alia, a “reasonable attorney fee” under

MCR 2.403(O)(6)(b) for the legal services performed by its member lawyers—including

the litigation of these posttrial motions. The trial court denied the defendants’ motion for

a new trial, and granted Fraser Trebilcock’s motion for case-evaluation sanctions, ruling

in particular that Fraser Trebilcock could recover an attorney fee as part of its sanctions.

The court recognized that an individual litigant (including one who is an attorney) cannot

recover attorney fees for engaging in self-representation, but, relying on certain language

from Kay v Ehrler, 499 US 432; 111 S Ct 1435; 113 L Ed 2d 486 (1991), concluded that

this prohibition did not extend to a corporation such as Fraser Trebilcock seeking to

recover a fee for legal services performed by its member lawyers. After an evidentiary

hearing, the court awarded Fraser Trebilcock $80,434 in attorney fees, plus interest—

roughly two-thirds of the amount of fees the firm had requested—and also permitted

Fraser Trebilcock to seek supplemental fees for additional time spent litigating the

sanctions request. Fraser Trebilcock requested $38,566.50 in such fees, of which the

court awarded $21,253.60, plus interest—resulting in a total award of approximately

$102,000, pre-interest, as a “reasonable attorney fee” sanction under

MCR 2.403(O)(6)(b).

The defendants appealed the judgment and each of the two sanctions orders. In a

split decision, the Court of Appeals affirmed the trial court in all respects but one,

3
reversing the trial court’s award of attorney fees to Fraser Trebilcock for time spent

pursuing its request for case-evaluation sanctions. See Fraser Trebilcock Davis &

Dunlap PC v Boyce Trust 2350, 304 Mich App 174; 850 NW2d 537 (2014). The panel

unanimously agreed on this reversal, 2 but divided over whether the remainder of the trial

court’s fee award under MCR 2.403(O)(6)(b) could stand. After surveying Michigan and

federal authority, the Court of Appeals majority upheld the trial court’s determination

that Fraser Trebilcock could recover attorney fees for the legal services performed by its

member lawyers in the breach-of-contract action, despite caselaw establishing that an

individual attorney-litigant may not recover such fees for self-representation. Like the

trial court, the majority relied significantly on certain language from the United States

Supreme Court in Kay, as well as federal authority interpreting that language. Chief

Judge MURPHY disagreed with the majority’s reasoning on this point, concluding instead

that Michigan authority precluding an award of attorney fees to an individual attorney-

litigant—most notably, Omdahl v West Iron Co Bd of Ed, 478 Mich 423; 733 NW2d 380

(2007)—extended to and foreclosed Fraser Trebilcock’s request for fees. 3

The defendants then filed the instant application for leave to appeal, seeking this

Court’s review of the Court of Appeals majority’s partial affirmance of the fee award to

2
The panel also unanimously rejected the defendants’ challenges to the trial court’s
exclusion of certain proposed testimony and its refusal to give a certain jury instruction.
3
The Court of Appeals majority also affirmed the trial court’s assessment of the
reasonableness of Fraser Trebilcock’s requested fees. In light of his determination that
no such fees could be awarded, Chief Judge MURPHY did not join this portion of the
majority’s opinion.

4
Fraser Trebilcock. 4 Fraser Trebilcock cross-appealed, challenging the Court of Appeals’

partial reversal of the fee award. We denied leave as to Fraser Trebilcock’s cross-appeal,

and ordered oral argument on the defendants’ application. See Fraser Trebilcock Davis

& Dunlap PC v Boyce Trust, 497 Mich 873 (2014). For the reasons set forth below, we

agree with the defendants that Fraser Trebilcock cannot recover a “reasonable attorney

fee” under MCR 2.403(O)(6)(b) for the legal services performed by its member lawyers

in connection with the instant suit. Accordingly, in lieu of granting the defendants’

application, we reverse the Court of Appeals in part and vacate the trial court’s attorney-

fee award to Fraser Trebilcock.

II. ANALYSIS

Our disposition of this fee dispute turns on the proper interpretation of

MCR 2.403(O), which this Court reviews de novo and under the same principles that

govern the construction of statutes. See McAuley v Gen Motors Corp, 457 Mich 513,

518; 578 NW2d 282 (1998). Namely, the court rule is to be interpreted according to its

plain language, “ ‘giving effect to the meaning of the words as they ought to have been

understood by those who adopted them.’ ” Id., quoting Buscaino v Rhodes, 385 Mich

474, 481; 189 NW2d 202 (1971). Unless expressly defined, “[e]very word or phrase

of . . . [the] court rule should be given its commonly accepted meaning[.]” Id.

4
The defendants did not challenge the Court of Appeals’ unanimous affirmance of the
trial court’s handling of certain trial-related matters, or the majority’s affirmance of the
trial court’s fee-reasonableness determination. Accordingly, these matters are not before
us.

5
MCR 2.403(O) provides, in relevant part:

(1) If a party has rejected an evaluation and the action proceeds to
verdict, that party must pay the opposing party’s actual costs unless the
verdict is more favorable to the rejecting party than the case evaluation.
However, if the opposing party has also rejected the evaluation, a party is
entitled to costs only if the verdict is more favorable to that party than the
case evaluation.

* * *

(6) For the purpose of this rule, actual costs are

(a) those costs taxable in any civil action, and

(b) a reasonable attorney fee based on a reasonable hourly or daily
rate as determined by the trial judge for services necessitated by the
rejection of the case evaluation.

For the purpose of determining taxable costs under this subrule and
under MCR 2.625, the party entitled to recover actual costs under this rule
shall be considered the prevailing party.

As a general matter, the purpose of MCR 2.403(O) “is to encourage settlement by

plac[ing] the burden of litigation costs upon the party who insists upon trial by rejecting a

proposed mediation award.” Watkins v Manchester, 220 Mich App 337, 344; 559 NW2d

81 (1996) (quotation marks omitted); see Smith v Khouri, 481 Mich 519, 527-528; 751

NW2d 472 (2008). “Although one of the aims of the mediation rule is to discourage

needless litigation, the rule is not intended to punish litigants for asserting their right to a

trial on the merits.” McAuley, 457 Mich at 523. Nor is it “designed to provide a form of

economic relief to improve the financial lot of attorneys or to produce windfalls.” Smith,

481 Mich at 528. Correspondingly, the “reasonable attorney fee” authorized under

MCR 2.403(O)(6)(b) is not punitive but “compensatory in nature.” McAuley, 457 Mich

at 520.

6
The parties do not dispute that Fraser Trebilcock is entitled to recover, as case-

evaluation sanctions under MCR 2.403(O), the “actual costs” of its breach-of-contract

action against the defendants, which proceeded to trial as a result of the defendants’

rejection of the case evaluation. The question before us is whether such costs include a

“reasonable attorney fee” for the legal services performed by Fraser Trebilcock’s member

lawyers over the course of that action. According to the defendants, this cannot be,

because Fraser Trebilcock’s self-representation did not give rise to an “attorney fee.” We

agree.

This Court most recently addressed the commonly accepted meaning of the phrase

“attorney fee” in Omdahl, explaining:

“Attorney” is defined as a “lawyer” or an “attorney-at-law.”
Random House Webster’s College Dictionary (2001). The definition of
“lawyer” is “a person whose profession is to represent clients in a court of
law or to advise or act for them in other legal matters.” Id. (emphasis
added). And the definition of “attorney-at-law” is “an officer of the court
authorized to appear before it as a representative of a party to a legal
controversy.” Id. (emphasis added). Clearly, the word “attorney” connotes
an agency relationship between two people. “Fee” is relevantly defined as
“a sum charged or paid, as for professional services or for a privilege.” Id.
[Omdahl, 478 Mich at 428.]

At issue in Omdahl was whether an individual attorney-litigant could recover attorney

fees for the representation he provided to himself in the successful pursuit of a claim

under the Open Meetings Act (OMA), MCL 15.261 et seq., which provides that if a

person prevails in an action under that statute, “the person shall recover court costs and

actual attorney fees for the action.” MCL 15.271(4). Looking to the above definitions,

this Court concluded that there were no such attorney fees for the individual attorney-

litigant to recover. As this Court explained, the “plain and unambiguous meaning of the

7
term ‘attorney’ ” requires “an agency relationship between an attorney and the client

whom he or she represents” and, with that relationship, “separate identities between the

attorney and the client.” Omdahl, 478 Mich at 428 n 1, 432. And see id. at 430 n 4

(“[B]oth a client and an attorney are necessary ingredients for an attorney fee award.”).

Because, in the case of an individual attorney-litigant, the requisite distinction in identity

between attorney and client is lacking, there is no attorney-client relationship from which

an “attorney fee” may arise, id. at 432—an outcome this Court deemed consistent with

decisions by “[t]he courts of this state as well as the federal courts,” which “have, in

deciding cases of this sort, focused on the concept that an attorney who represents

himself or herself is not entitled to recover attorney fees because of the absence of an

agency relationship.” Id. at 428-429. 5

We agree with the defendants that this same rationale applies to the instant case,

and is fatal to Fraser Trebilcock’s request for attorney fees under MCR 2.403(O)(6)(b).

Fraser Trebilcock does not challenge the commonly accepted meaning of “attorney fee”

set forth in Omdahl, nor do we see any reason to assign that phrase a different meaning

under the plain language of MCR 2.403(O)(6)(b). 6 Instead, Fraser Trebilcock focuses on

5
This Court also noted that, while the OMA expressly permits recovery of only “actual”
attorney fees, Omdahl’s fee request did not fail because of that term or any distinction
there may be between it and “reasonable”; rather, Omdahl could not recover fees for his
self-representation because of the absence of the attorney-client relationship that inheres
in and is necessary to an “attorney fee.” See Omdahl, 478 Mich at 430 n 4.
6
MCR 2.403 provides no express definition of “attorney fee.” While
MCR 2.403(O)(6)(b) specifies that any “reasonable attorney fee” awarded as a case-
evaluation sanction must be “based on a reasonable hourly or daily rate as determined by
the trial judge for services necessitated by the rejection of the case evaluation,” nothing in
this language purports to supplant or modify the commonly accepted meaning of

8
distinguishing that precedent from the instant case, contending that Omdahl and its ilk do

not foreclose the request for fees in this case because, unlike an individual attorney-

litigant, an incorporated law firm such as Fraser Trebilcock enjoys an identity distinct

from its member lawyers; thus, when those lawyers appeared on behalf of Fraser

Trebilcock in the underlying breach-of-contract action, the agency relationship necessary

to give rise to an “attorney fee” was present.

There is no dispute that Fraser Trebilcock, as a corporation, is a legal entity

distinct from its shareholders. See, e.g., Bourne v Muskegon Circuit Judge, 327 Mich

175, 191; 41 NW2d 515 (1950). There is also no dispute that Fraser Trebilcock used its

member lawyers as agents to litigate its interests in the instant suit; indeed, there is no

other way the firm could act on its own behalf. See generally Mossman v Millenbach

Motor Sales, 284 Mich 562, 568; 280 NW 50 (1938) (recognizing that a corporation can

“only act through its agents”). These facts alone, however, do not mean that the firm and

its member lawyers necessarily enjoyed separate identities as client and attorney for the

purposes of that litigation, such that the agency relationship between them would be

sufficient to give rise to an “attorney fee” under Omdahl. To the contrary, we see no

“attorney fee” quoted above, or to suggest that such a fee can be awarded under
MCR 2.403(O)(6)(b) in the absence of the type of attorney-client relationship discussed
in Omdahl. To the contrary, in concluding that such a relationship was necessary for a
fee award under the OMA, this Court relied in part on authority interpreting the “attorney
fee” available under MCR 2.403(O)(6)(b). See Omdahl, 478 Mich at 431 (explaining
that its interpretation of “attorney fee” was supported by Watkins, 220 Mich App 337,
which held that an individual attorney-litigant may not recover a “reasonable attorney
fee” for self-representation under MCR 2.403(O)(6)(b) and which likewise “focused on
the availability of any attorney fees when the [attorney-client] agency relationship was
missing”).

9
more of that relationship here than when an individual attorney engages in self-

representation. For instance, Fraser Trebilcock routinely identified itself as its attorney

throughout the litigation, and the record betrays no distinction in that regard between the

firm and the member lawyers who physically appeared on its behalf—a conflation of

identity consistent with our court rules, which make clear that the appearance of Fraser

Trebilcock’s member lawyers was tantamount to “the appearance of every member of the

firm,” MCR 2.117(B)(3)(b). Nor is there any indication that those member lawyers

viewed or treated the firm as a client distinct from themselves. The nature of the fee

sought by Fraser Trebilcock further confirms this analogy to an individual attorney-

litigant; like such a litigant, the firm is seeking to recover for the legal services that it was

forced to direct to the instant suit rather than to its clients, by virtue of the defendants’

rejection of the case evaluation. As recognized in Omdahl, an individual attorney-litigant

typically cannot seek such remuneration as an “attorney fee”—a general rule to which

MCR 2.403(O)(b)(6) provides no exception. See McAuley, 457 Mich at 520 (explaining

that the compensatory nature of an attorney-fee award under MCR 2.403(O)(6)(b) “is

illustrated by the well-established body of law holding that a litigant representing himself

may not recover attorney fees as an element of costs or damages under either a statute or

a court rule”). We are not convinced that the outcome should be any different for Fraser

Trebilcock here.

In sum, while we acknowledge that Fraser Trebilcock is a legally distinct

corporate entity, we do not find that status sufficient to distinguish the representation it

provided to itself through its member lawyers from the self-representation at issue in

Omdahl, such that Fraser Trebilcock may recover a “reasonable attorney fee” under

10
MCR 2.403(O)(6)(b) for its member lawyers’ services. In resisting this conclusion,

Fraser Trebilcock stresses that a corporation, unlike an individual, may only appear in

court through licensed counsel. We agree with this general proposition, see, e.g., Detroit

Bar Ass’n v Union Guardian Trust Co (On Reconsideration), 282 Mich 707, 711; 281

NW 432 (1938), and further recognize that, as a professional corporation, Fraser

Trebilcock may only provide legal services through its duly licensed “officers,

employees, and agents,” MCL 450.1285(1). Contrary to Fraser Trebilcock’s suggestion,

however, Michigan law does not prohibit a corporation from representing itself. See

MCL 450.681 (“It shall be unlawful for any corporation or voluntary association to

practice or appear as an attorney-at-law for any person other than itself in any court in

this state or before any judicial body, or to make it a business to practice as an attorney-

at-law, for any person other than itself, in any of said courts . . . .”) (emphasis added).

That the corporation may only do so through an appropriately licensed agent limits, but

does not eliminate, this ability; nor does it mean that a corporation necessarily enters into

the sort of relationship with its agent sufficient to support recovery of an attorney fee

under Omdahl. And as discussed above, we fail to see such a relationship in Fraser

Trebilcock’s self-representation here.

According to Fraser Trebilcock, this conclusion is at odds with the United States

Supreme Court’s decision in Kay, which this Court discussed favorably in Omdahl. In

Kay, an attorney successfully represented himself in a civil-rights action challenging the

constitutionality of a state statute; he sought attorney fees under 42 USC 1988(b), which

provides that the trial court, “in its discretion, may allow the prevailing party . . . a

reasonable attorney’s fee as part of the costs.” The United States Supreme Court

11
unanimously affirmed the lower courts’ rejection of this claim, citing the well-established

“proposition that a pro se litigant who is not a lawyer is not entitled to attorney’s fees,”

Kay, 449 US at 435, and concluding that the outcome should be no different for

individual attorney-litigants seeking fees under § 1988. As noted in Omdahl, the Kay

Court supported this conclusion in part with its observation that “the word ‘attorney’

assumes an agency relationship, and it seems likely that Congress contemplated an

attorney-client relationship as the predicate for an award under § 1988.” Id. at 435-436

(footnote omitted). Fraser Trebilcock stresses, however, that the Kay Court

immediately—and critically, for the purposes of its claimed fees—qualified this

observation with the following footnote:

Petitioner argues that because Congress intended organizations to
receive an attorney’s fee even when they represented themselves, an
individual attorney should also be permitted to receive an attorney’s fee
even when he represents himself. However, an organization is not
comparable to a pro se litigant because the organization is always
represented by counsel, whether in-house or pro bono, and thus, there is
always an attorney-client relationship. [Id. at 436 n 7.]

As summarized by the Court of Appeals majority in this case, some federal

circuits have relied upon this footnote in Kay to conclude that law firms represented by

their own member lawyers can recover attorney fees for that representation. 7 Fraser

Trebilcock urges us, like the Court of Appeals majority, to do the same. We, however,

7
See Treasurer, Trustees of Drury Indus, Inc Health Care Plan & Trust v Goding, 692
F3d 888, 898 (CA 8, 2012), cert den 133 S Ct 1644 (2013); Baker & Hostetler LLP v US
Dep’t of Commerce, 473 F3d 312, 325 (CA DC, 2006); Bond v Blum, 317 F3d 385 (CA
4, 2003); Gold, Weems, Bruser, Sues & Rundell v Metal Sales Mfg Corp, 236 F3d 214,
218-219 (CA 5, 2000).

12
do not find Kay’s nonbinding dictum instructive here, and decline to follow suit. As

discussed, we fail to see a meaningful distinction under Michigan law between Fraser

Trebilcock’s request for attorney fees under MCR 2.403(O)(6)(b) and that of an

individual attorney-litigant; Kay’s passing commentary on fee requests by organizations

under 42 USC 1988 does not convince us otherwise. This commentary sought to

reconcile Kay’s central holding—that individual attorney-litigants may not recover fees

for self-representation—with Congress’s apparent intent that unspecified “organizations”

be able to recover fees for representation provided by pro bono or in-house counsel under

§ 1988. Nothing in this dictum suggests that it was intended to reach beyond this limited

task of interpretive reconciliation, let alone that it was meant to affirmatively distinguish

an individual attorney-litigant from a law firm seeking fees for the representation it

provided to itself through its member lawyers—a distinction we particularly hesitate to

read into Kay’s footnote, given the overall thrust of the opinion.

Nor do we see a good fit between the circumstances expressly contemplated in this

dictum and those presently before us. Kay’s footnote spoke to the attorney-client

relationship that may arise between an organization and its in-house or pro bono counsel.

Hoping to duck under Kay’s umbrella, Fraser Trebilcock likens the member lawyers who

appeared on its behalf to such in-house counsel, but we find this characterization inapt.

As Kay’s dictum reflects, the relationship between an organization and its in-house

counsel is typically one of attorney and singular client; the attorney is employed by the

organization in order to provide legal services to the organization. There is no indication,

however, that Fraser Trebilcock enjoyed this same type of relationship with its member

lawyers in the instant suit—namely, that these lawyers were employed by and affiliated

13
with the firm to provide legal services to the firm as a distinct and exclusive client, rather

than to provide such services on behalf of the firm to its clients. Whether and under what

circumstances a law firm may recover fees for representation provided to it by in-house

counsel is not before us, and we decline to reach that question here. For present

purposes, it is enough to say that, to the extent Kay can be read to recognize the existence

of an attorney-client relationship between a law firm and its in-house counsel, this

recognition does nothing to further Fraser Trebilcock’s request for fees here.

III. CONCLUSION

For the reasons set forth above, we conclude that Fraser Trebilcock cannot recover

a “reasonable attorney fee” under MCR 2.403(O)(6)(b) for the legal services performed

by its member lawyers in connection with the instant suit. Accordingly, we reverse the

Court of Appeals in part, vacate the trial court’s award of a “reasonable attorney fee” to

Fraser Trebilcock under MCR 2.403(O)(6)(b), and remand to the trial court for further

proceedings consistent with this opinion.

Bridget M. McCormack
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
David F. Viviano
Richard H. Bernstein