There is a statute in Massachusetts, G.L. c.231, section 6F, that authorizes an award of reasonable attorney’s fees incurred in litigation when “all or substantially all” of the opposing party’s claims are “wholly insubstantial, frivolous and not advanced in good faith.” If a judge finds that the claims meet that standard, the statute mandates the award of reasonable counsel fees and expenses. A claim is considered to be frivolous if there is an absence of legal or factual basis for the claim. Although the statute is frequently invoked by attorneys, either at the onset of a case or at the conclusion of a hearing or trial, judges rarely find a plaintiff’s claims are so devoid of merit as to be considered ”wholly insubstantial, frivolous and not advanced in good faith.”

Nonetheless, in a recent case in the Probate Court, Konowitz & Greenberg prevailed on a motion for attorney’s fees under the statute where an elderly widow filed an action against the estate of her late husband. The widow became so enraged after her husband’s death when she learned that he left her nothing after fifty years of marriage that she filed a Complaint in Equity seeking recourse from the court. The Complaint misstated the most basic facts upon which her claims were based, and contained multiple causes of action such as undue influence, fraud and duress, without any supporting facts. The errors in the Complaint were so egregious that we wrote to the widow’s attorney and advised her to withdraw the Complaint before we proceeded with a Motion to Dismiss and a Motion for Attorney’s Fees and Costs.

The widow’s attorney not only refused to withdraw the Complaint, but during the hearing on our Motion to Dismiss, she more or less admitted in open court that she made up facts to file the claim so that she could have the opportunity to investigate the facts during the discovery process!

As a result, our client, the executor of the estate and trustee of the decedent’s trust, was forced to incur significant legal fees to defend against the Complaint. Once the court reviewed the pleadings there was only one just result: dismissal of the Complaint and the award of attorney’s fees and costs to our client. The judge ruled in our favor not only because the causes of action in the Complaint were unsubstantiated but also because the trust and estate of the decedent incurred expenses to defend against the plaintiff’s frivolous action. The court found that it was inequitable to the beneficiaries of the decedent’s estate and trust to bear the cost of the defense of the plaintiff’s action when the Complaint failed to support her causes of action.

The widow’s strategy backfired, a strategy that was based on greed, a theme that carried through her marriage and beyond. Not only did she have to pay her attorney to pursue a frivolous case, she lost the case AND had to pay thousands of dollars in additional attorney’s fees to our client. In Massachusetts, lawyers and litigants who persist in pursuing claims that have no legal or factual basis should rethink their strategy rather than run the risk of being ordered to pay their opponent’s litigation costs, including attorney’s fees.