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The Oregon Ct of Appeals today awarded attorney fees to a pro se LUBA petitioner after he used the attorney for consulting purposes. Stewart v. City of Salem, see here.

In doing so, the Ct App followed an August 2010 Sup Ct case (Colby v. Gunson, here) in which an attorney proceeding pro se on a public records request was awarded fees. In the City of Salem case, though, the attorney acted in more of a consulting fashion. See fn.1 (“All filings with the board identified petitioner as a "pro se" litigant and were signed by him, although his petition for review before the board was additionally signed by attorney Hoelscher under the notation, "[W]ith the advice and assistance of." Hoelscher also signed petitioner's motions for costs and attorney fees. The city conceded at oral argument that petitioner had received "attorney services" from Hoelscher in connection with petitioner's appeal to the board. Those services included advice, legal research, and editorial assistance in the preparation of petitioner's filings”). The Ct App agreed that there was no appearance requirement in the LUBA statute:

[Claimant] argues that the plain meaning of "attorney fees" espoused by the Supreme Court in Colby v. Gunson, 349 Or 1, 238 P3d 374 (2010)--a decision issued after the board's order in this case--applies to the circumstances here.(2) The court in Colby held that "'attorney fees,' as used in the context of attorney fee awards, means the reasonable value of services performed by an attorney." 349 Or at 6.

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"[A]ttorney fees," under ORS 197.835(10)(b), means the reasonable value of legal services provided by an attorney that are related to the applicant's appeal of a local government decision to LUBA. As noted, there is no dispute that the advice and assistance provided by Hoelscher during petitioner's appeal to the board were "legal services" and that at least part of those services were related to the prosecution of the appeal to the board. Nor is there any dispute that Hoelscher is an "attorney"--he is a member of the Bar authorized to practice law in this state. That Hoelscher did not provide full representation--i.e., did not also appear before the board on behalf of petitioner as an attorney of record--is of no consequence for purposes of the attorney fee provision.

What was interesting from the Colby case though is that the court is awarding fees even if none are actually incurred. Public records requests in particular could prove to be major sources of liability for government entities under the Colby ruling. Is that why AG Kroger is calling for “reform” of the public record request statutes? Depending on what makes it out of the legislature, these amendments could prove a good thing to citizens who wish to keep tabs on the workings of the public sector. More likely, lobbyists for the state agencies will water down the bill and remove the few teeth it has.