Recovery of Legal Fees: Frivolous or Unsuccessful Complaints

9/30/2019

Legal costs for defending an ethics complaint can be high. Expenses range broadly based on numerous factors, but the cost of defending even a frivolous complaint can run up into the tens or hundreds of thousands of dollars.

Several states allow for the recovery of reasonable attorneys’ fees when defending against ethics complaints in certain situations. States most often permit recovery of costs if a complaint is found to have been filed in bad faith. Definitions vary, but complaints are generally considered frivolous or filed in bad faith if the complainant knowingly or intentionally files false allegations with the intent to harm an official’s reputation.

In a few states, costs may be covered by an ethics commission if its findings against a defendant are overturned on appeal. Others permit the prevailing party in a contested case to recover reasonable attorneys’ fees.

The following table provides a list of each state’s statutory provisions that may allow a public official or employee to recover legal fees incurred defending against an ethics complaint. Guam, Puerto Rico, the Virgin Islands and the District of Columbia are also included.

This table is intended to provide general information and does not necessarily address all aspects of this topic. Because the facts of each situation may vary, this information may need to be supplemented by consulting legal advisors. All content is up to date through 9/30/2019.

Legal Fees
State Related Rules

Alabama

No relevant statutory provisions found.

Alaska

No relevant statutory provisions found.

Arizona

No relevant statutory provisions found.

Arkansas

No relevant statutory provisions found.

California

No relevant statutory provisions found.

Colorado

No relevant statutory provisions found.

Connecticut

Upon a finding of no probable cause to believe that a public official or state employee has committed a violation, or if the board determines that a public official or state employee has not committed a violation, or if a court of competent jurisdiction overturns a finding by the board of a violation, the state shall pay the reasonable legal expenses of the respondent as determined by the attorney general or by the court if appropriate. If any qualifying complaint is made with the knowledge that it is made without foundation in fact, the respondent shall have a cause of action against the complainant for double the amount of damage caused thereby, court costs and reasonable attorneys' fees. Conn. Gen. Stat. Ann. § 1-82.

Delaware

No relevant statutory provisions found.

District of Columbia

No relevant statutory provisions found.

Florida

Complaints filed with malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation, the complainant shall be liable for costs plus reasonable attorneys fees incurred in defense of the complaint. Fla. Stat. Ann. § 112.317.

Georgia

The commission may award attorneys' fees to the party complained against if the commission deems the complaint to be frivolous, legally or factually, or if the complaining party fails, without good cause, to appear at the preliminary hearing on the complaint. Ga. Code Ann. § 21-5-6.
Guam Knowingly and intentionally filing a false charge with the commission constitutes perjury. Whomever is convicted of perjury shall be required to reimburse the person against whom the false charges were filed for all the person's legal expenses and court costs incurred related to that person's defense against the false complaint. 4 G.C.A. § 15402.

Hawaii

Knowingly and intentionally filing a false charge with the commission shall be perjury and shall reimburse the person against whom the false charge was filed for all legal expenses and other expenses incurred in relation to the person's defense against the false complaint. Haw. Rev. Stat. Ann. § 84-31 & Haw. Rev. Stat. Ann. § 84-31.3.

Idaho

No relevant statutory provisions found.

Illinois

No relevant statutory provisions found.

Indiana

No relevant statutory provisions found.

Iowa

No relevant statutory provisions found.

Kansas

No relevant statutory provisions found.

Kentucky

No relevant statutory provisions found.

Louisiana

If the Ethics Board does not prevail in the final disposition of an appeal, the board shall be responsible for the payment of reasonable attorney fees and court costs of the other party inclusive of all stages of litigation and appeal. La. Stat. Ann. § 42:1142.

Maine

Frivolous complaints or those filed in bad faith or if the complainant fails to appear at the hearing without being excused by the commission, the commission may order the complainant to pay the legislator against whom the complaint has been filed that Legislator's costs of investigation and defense, including reasonable attorney's fees. Me. Rev. Stat. tit. 1, § 1013.

Maryland

No relevant statutory provisions found.

Massachusetts

If a board decision is reversed upon appeal, the official/employee shall be entitled to reimbursement for reasonable legal fees not to exceed $30,000 per person, per case. Mass. Gen. Laws Ann. ch. 268B, § 4.

Michigan

No relevant statutory provisions found.

Minnesota

Allows for recovery of attorneys' fees and court costs for prevailing parties for provisions relating to campaign reporting violations. Minn. Stat. Ann. § 10A.20. No other relevant statutory provisions found. 

Mississippi

No relevant statutory provisions found.

Missouri

“Frivolous” shall mean a complaint clearly lacking any basis in fact or law. Any person who submits a frivolous complaint shall be liable for actual and compensatory damages to the alleged violator for holding the alleged violator before the public in a false light. Mo. Ann. Stat. § 105.957.

Montana

No relevant statutory provisions found.

Nebraska

No relevant statutory provisions found.

Nevada

No relevant statutory provisions found.

New Hampshire

No relevant statutory provisions found.

New Jersey

In any action brought under the section relating to lobbyists, if the defendant prevails, he shall be awarded all costs of trial, and may be awarded a reasonable attorneys' fee to be fixed by the court and paid by the State of New Jersey. N.J. Stat. Ann. § 52:13C-36. No statutory provisions found relevant to fees relating to ethics complaints against legislators.

New Mexico

No relevant statutory provisions found.

New York

No relevant statutory provisions found.

North Carolina

A legal expense fund may be used for reasonable expenses incurred in relation to a legal action or potential action brought by or against the elected officer in the officer's official capacity. N.C. Gen. Stat. Ann. § 163A-1570.

North Dakota

No relevant statutory provisions found.

Ohio

No relevant statutory provisions found.

Oklahoma

No relevant statutory provisions found.

Oregon

The prevailing party in a contested case, the Oregon Government Ethics Commission may allow the petitioner reasonable attorney fees and costs if the court finds in favor of the petitioner, or may withhold all or part of the attorney fees from any allowance to a petitioner if the court finds that the commission has proved that its action was substantially justified or that special circumstances exist that make the allowance of all or part of the attorney fees unjust. Upon appeal, an appellate court may award reasonable attorneys fees if prevailing upon appeal from the decision of a commission, subject to the same exceptions as above. Or. Rev. Stat. Ann. § 244.400.

Pennsylvania

A person who signs a complaint alleging an ethics violation against another is subject to liability for wrongful use if: 1) complaint was frivolous or without probable cause (i.e. good faith and reasonable belief the facts of the complaint are valid) and made primarily for a purpose other than that of reporting a violation, or 2) the person who signs the complaint publicly disclosed or caused to be disclosed that a complaint against a person had been filed with the commission. Wrongful use liability includes 1) reputational harm, 2) expenses, including reasonable attorney fees, 3) any resultant pecuniary loss from the proceedings, 4) emotional distress, 5) punitive damages as appropriate. 65 Pa.C.S.A. § 1110.
Puerto Rico No relevant statutory provisions found.

Rhode Island

No relevant statutory provisions found.

South Carolina

If a petition is filed with the commission that is filed i) for an improper purpose such as harassment or to cause delay; ii) frivolous or not based on claims, defenses, and other legal contentions warranted by existing law; and iii) without evidentiary support or unlikely to have such support after further opportunity for investigation or discovery, then the court must award reasonable attorneys' fees and costs to the nonpetitioning party. S.C. Code Ann. § 8-13-320. A similar provision exists for House and Senate ethics committees. S.C. Code Ann. § 8-13-530.

South Dakota

In the statutory section on the State Government Accountability Board: A person acting in good faith is immune from civil liability for furnishing information, filing a report or making a complaint. If a civil action is commenced against a person for damages related such and the court determines that the person acted in good faith, the person may recover costs or disbursements including reasonable attorneys' fees. However, if the court determines that the person furnishing information, filing a report, or making a complaint did not act in good faith, the person who commenced the civil action may recover costs or disbursements, including reasonable attorneys' fees, from the person who did not act in good faith. S.D. Codified Laws § 3-24-6.

Tennessee

If a person: (1) Files a complaint against a member of the commission that results in an investigation, knowing that the material statements in the complaint or the information provided was not true; (2) Files an unsubstantiated complaint in reckless disregard of the truth or falsity of the statements contained in the complaint; or (3) Files one or more unsubstantiated complaints that constitute abuse of process, then the complainant is subject to the civil penalties and may be liable for any reasonable costs and reasonable attorney fees the alleged violator has incurred. Sanctions are not exclusive and do not preclude any other remedies or rights of action the member may have against the complainant or informant under the law; provided, that any person who in good faith files a verified complaint or any person, official, or agency who gives credible information that results in an investigation is immune from any civil liability that otherwise might result by reason of such actions. Tenn. Code Ann. § 3-6-209.

Texas

Regarding sworn complaints that are filed after the 30th day before an election, the respondent is a candidate in the election, and the complaint alleges a violation other than a technical or clerical violation: If a violation has not occurred, the complainant is liable for respondent's reasonable and necessary attorney's fees and other costs incurred in defending against the complaint. Tex. Gov't Code Ann. § 571.142.

A person who discloses information made confidential during preliminary review is civilly liable to the respondent in an amount equal to the greater of $10,000 or the amount of actual damages incurred by the respondent, including court costs and attorney fees. Tex. Gov't Code Ann. § 571.140.

The commission may impose a civil penalty of not more than $10,000 for the filing of a frivolous or bad-faith complaint. In this subsection, “frivolous complaint” means a complaint that is groundless and brought in bad faith or is groundless and brought for the purpose of harassment. In addition to other penalties, a person who files a frivolous complaint is civilly liable to the respondent in an amount equal to the greater of $10,000 or the amount of actual damages incurred by the respondent, including court costs and attorney fees. Tex. Gov't Code Ann. § 571.176.

Utah

No relevant statutory provisions found.

Vermont

No relevant statutory provisions found.

Virginia

No relevant statutory provisions found.

Virgin Islands

No relevant statutory provisions found.

Washington

For "citizen actions" brought upon an ethics board or attorney general's failure to commence an action within 45 and 10 days notices from the person, citizens who prevail shall be reimbursed by the state for costs and attorneys' fees incurred. If the action was brought without reasonable cause, the person may be ordered to pay all costs of trial and reasonable attorneys' fees incurred by the defendant. Upon commencement of a citizen action, the office of the attorney general shall represent the defendant upon the defendant-state officer or employee's request, so long as the alleged conduct was within the scope of employment and otherwise complied with the chapter (Ethics in Public Service). Wash. Rev. Code Ann. § 42.52.460.

West Virginia

Any person who in good faith files a verified complaint or any person, official or agency who gives credible information resulting in a formal complaint filed by commission staff is immune from any civil liability that otherwise might result by reason of such actions. If the commission determines, by clear and convincing evidence, that a person filed a complaint or provided information which resulted in an investigation knowing that the material statements in the complaint or the investigation request or the information provided were not true; filed an unsubstantiated complaint or request for an investigation in reckless disregard of the truth or falsity of the statements contained therein; or filed one or more unsubstantiated complaints which constituted abuse of process, the commission shall: (A) Order the complainant or informant to reimburse the respondent for his or her reasonable costs; (B) Order the complainant or informant to reimburse the respondent for his or her reasonable attorney fees; and (C) Order the complainant or informant to reimburse the commission for the actual costs of its investigation. In addition, the commission may decline to process any further complaints brought by the complainant, the initiator of the investigation or the informant. W. Va. Code Ann. § 6B-2-4.

Wisconsin

If the commission finds, by a preponderance of the evidence, that a complaint is frivolous, the commission may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the commission in investigating the complaint. Wis. Stat. Ann. § 19.49.

Wyoming

No relevant statutory provisions found.