This special action arises out of a criminal case but says some things about the inherent power of the court to impose sanctions that might be mentioned in other contexts.

Kaufman is a lawyer. When the County Attorney’s office allegedly violated the terms of his clients’ plea agreement, he moved for an OSC against it. The trial court turned it down (as did the Court of Appeals on special action) and ordered Kaufman to pay the County Attorney’s legal fees defending it, finding it frivolous, unsubstantiated, and inappropriate. Kaufman also took special action from that, which the Court of Appeals accepted and reversed.

No criminal statute or rule allows a sanction of attorney’s fees for a frivolous pleading. The County Attorney therefore argued that the court had the inherent power to do it. A court clearly has inherent power to sanction; the question is whether its inherent power includes attorney’s fees.

“In Arizona we follow the general American rule that attorney fees are not recoverable unless they are expressly provided for by either statute or contract.” (The opinion quotes this verbatim, from an Arizona Supreme Court case. Why? The sentence is clumsy and ugly; prose style was not the sort of style Justice Gordon aspired to. Why not say it better?) “We conclude that, generally, an Arizona trial court may not require one party to pay another’s attorney fees in the absence of statutory or contractual authorization to do so” (this a quotation from this opinion). Except that in civil cases there are various situations in which the trial court can do precisely that (the opinion acknowledges this and cites some appropriate cases). But you can’t do it in criminal cases.

The thing to remember is that to get attorney-fee sanctions in a civil case you do need some authority for it, whether statute, rule, or case law allowing it in that situation. That you need authority for taking a legal position should not surprise, though some lawyers spend a career affecting offence at the thought.