Can an attorney who chooses to litigate in propria persona rather than retain an attorney to represent him recover attorney fees?

In Trope v. Katz, supra, 11 Cal.4th 274, 45 Cal.Rptr.2d 241, 902 P.2d 259, we considered whether an attorney who chooses to litigate in propria persona rather than retain an attorney to represent him in an action to enforce a contract containing an attorney fee provision can recover attorney fees under Civil Code section 1717. We answered the question in the negative. We explained that, by definition, the term "attorney fees" implies the existence of an attorney-client relationship, i.e., a party receiving professional services from a lawyer. (11 Cal.4th at p. 280, 45 Cal.Rptr.2d 241, 902 P.2d 259; see Kay v. Ehrler (1991) 499 U.S. 432, 435-436, 111 S.Ct. 1435, 113 L.Ed.2d 486 ["the word `attorney' assumes an agency relationship"].)

Nor can an attorney acting in propria persona receive compensation from his opponent "simply because the time he devotes to litigating a matter on his own behalf has value." (Trope v. Katz, supra, 11 Cal.4th at p. 285, 45 Cal.Rptr.2d 241, 902 P.2d 259.) Such an award would constitute disparate treatment, inimical to a statute designed to establish mutuality of remedy: "If an attorney who is the prevailing party in an action to enforce a contract with an attorney fee provision can recover compensation for the time he expends litigating his case in propria persona, but a nonattorney pro se litigant cannot

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do so regardless of the personal and economic value of such time simply because he has chosen to pursue a different occupation, every such contract would be oppressive and one-sided." (Id. at pp. 285-286, 45 Cal.Rptr.2d 241, 902 P.2d 259.) We pointed out that the ordinary meaning of the phrase "attorney's fees" is the consideration that a litigant actually pays or becomes liable to pay for legal representation, and observed that an attorney litigating in propria persona pays no such compensation. (Id. at p. 280, 45 Cal.Rptr.2d 241, 902 P.2d 259.) We concluded that an attorney acting in propria persona should not be entitled to lost opportunity costs, as the equivalent of such incurred liability. (Id. at p. 285, 45 Cal.Rptr.2d 241, 902 P.2d 259.)

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