S057691, Opinion — Colby v. Gunson

1
Argued and submitted May 13, decision of Court of Appeals reversed, and case
remanded to Court of Appeals for further proceedings August 26, 2010
Craig COLBY,
Petitioner on Review,
v.
Karen GUNSON,
State Medical Examiner,
Respondent on Review.
(CC 06C15785; CA Al33979; SC 8057691)
238 P3d 374
CJS, Records§ 119.

2 	Colby v. Gunson
En Banc
On review from the Court of Appeals.*
Craig P. Colby argued the cause and filed the petition for. 	. 	.
reVJew m propna persona.
Jerome Lidz, Solicitor General, argued the cause and filed
the brieffor respondent on review. With him on the brief was
John R. Kroger, Attorney General.
Thomas M. Christ, Portland, filed a brief for amici curiae
ACLU Foundation of Oregon, Inc., Oregon Trial Lawyers
Association, 	Oregon 	Law 	Center, 	and Disability Rights
Oregon.
Barbara L. Johnston, Brisbee & Stockton LLC, Hillsboro,
filed a briefforamicus curiae Carrell F. Bradley. With her on
the brief was Larry A. Brisbee.
BALMER,J.
The decision of the Court of Appeals is reversed, and the
case 	is remanded to 	the 	Court of Appeals 	for 	further
proceedings.
* Appeal from Marion County Circuit Court, Albin W. Norblad, .Judge. 229 Or
App 167, 210 P3d 917 (2009).

Cite as 349 Or 1 (2010) 	3
BALMER,J.
This case requires us to determine whether an attor-
ney, acting pro se, is entitled to attorney fees under ORS
192.490(3), which grants "reasonable attorney fees" to any
person who prevails in a suit seeking disclosure of a public
record. Plaintiff, an attorney, filed an action on his own
behalf seeking access to reports in the possession of the state
medical 	examiner. 	The 	trial 	court 	dismissed 	plaintiffs
claims. 	On 	appeal, 	the 	Court of Appeals reversed 	and
remanded. Plaintiff then sought attorney fees. The Court of
Appeals denied plaintiffs request, reasoning that the phrase
"attorney fees" does not include the value of legal services
performed by an attorney acting prose. Colby v. Gunson, 229
Or App 167, 210 P3d 917 (2009). We allowed plaintiffs peti-
tion for review and now reverse the decision of the Court of
Appeals.
Plaintiff requested that defendant, the state medical
examiner, disclose autopsy and laboratory reports prepared
during the investigation of a police shooting. Plaintiff made
the request pursuant to ORS 192.420, which provides that,
with certain exceptions, "[e]very person has a right to inspect
any public record of a public body in this state." Defendant
refused to disclose the reports, contending that they were
exempt from disclosure. Plaintiff petitioned the Attorney
General to order defendant to disclose the reports, and the
Attorney General denied plaintiffs petition.
Plaintiff then instituted proceedings in the Marion
County 	Circuit 	Court 	to 	obtain 	disclosure. 	See 	ORS
192.450(2) (authorizing proceedings). The trial court deter-
mined that the records were exempt from disclosure under
ORS 192.502(9), which exempts from disclosure records that
are confidential or privileged under Oregon law. Plaintiff
appealed, and the Court of Appeals reversed and remanded.
The court concluded that the records were not exempt under
ORS 192.502(9), but remanded the case for the trial court to
determine whether the records were exempt under another
statute. Colby v. Gunson, 224 Or App 666, 199 P3d 350
(2008).

4 	Colby v. Gunson
After he had successfully appealed, plaintiff sought
attorney fees under ORS 192.490(3). That statute provides,
in part:
"If a person seeking the right to inspect or to receive a
copy of a public record prevails in the suit, the person shall
be awarded costs and disbursements and reasonable attor-
ney fees at trial and on appeal. If the person prevails in part,
the court may in its discretion award the person costs and
disbursements and reasonable attorney fees at trial and on
appeal, or an appropriate portion thereof."
(Emphases added.) The Court of Appeals denied plaintiff's
request, concluding that the meaning of "attorney fees,"
under the statute, is "the price demanded by an attorney for
services rendered to a separate client entity." Colby, 229 Or
App at 171. Because plaintiff had represented himself, the
court determined that he was not entitled to receive attorney
fees for his legal services. 1 Plaintiff filed a petition for review,
which we allowed.
On review, plaintiff argues that the term "attorney
fees," as used in ORS 192.490(3), means "the value of the
services performed by [an] attorney." In plaintiffs view,
although he did not represent a client separate from himself
or send a bill for his services, he nevertheless performed serv-
ices as an attorney and is entitled to recover the value of
those services under the statute. Defendant disagrees and
argues that each word-"attorney" and "fees"-has inde-
pendent significance. In particular, defendant argues that
the word "attorney" connotes an agency relationship, rather
than a status. Thus, according to defendant, "attorney fees"
must arise out of services rendered by one person in the
course of representing another. Further, defendant argues,
the legislature's use of the word "fees" requires that that sep-
arate client actually incur an obligation to pay for those serv-
ices rendered.
For the reasons set out below, we agree with plaintiff
that the term "attorney fees," as used in ORS 192.490(3),
means the reasonable value of legal services provided by an
1 The court allowed plaintiff's petition for costs, to abide the outcome on
remand. See ORAP 13.05(4) (appellate court may allow costs to prevailing party
and condition award on outcome of case).

Cite as 349Or1 (2010) 	5
attorney in seeking the disclosure of public records. Plaintiff
is a practicing attorney who performed legal services in pur-
suit of disclosure of public records, and plaintiff is therefore
entitled to recover from defendant the reasonable value of
those services, despite the fact that he acted prose.
Because the term "attorney fees" is not defined in the
statute, we look to the plain and ordinary meaning of the
term. See State v. Tate, 347 Or 318, 324, 220 P3d 1176 (2009)
(court gives words of common usage their plain, ordinary
meaning). In determining the plain meaning of "attorney
fees," the Court of Appeals relied, in part, on the definition
provided in Black's Law Dictionary: "The charge to a client
for services performed for the client, such as an hourly fee, a
flat fee, or a contingent fee." Black's Law Dictionary 148 (9th
ed 2009). Admittedly, that definition implies some sort of
obligation of one individual (the client) to pay another (the
attorney). 	However, 	the 	definition 	in Black's-although
appropriate in certain contexts-is not the only reasonable
interpretation of the term. Instead, when used in the context
of an attorney fee award, the ordinary meaning of the term
also includes the reasonable value of an attorney's services,
whether or not the client was required to pay for those serv-
ices. See ORCP 68 A(l) ("'Attorney fees' are the reasonable
value oflegal services related to the prosecution or defense of
an action.");2 see also Chalmers v. Oregon Auto. Ins. Co., 263
Or 449, 455, 502 P2d 1378 (1972) ("For the purpose of deter-
mining what is a reasonable attorney fee in the appeal of a
case to this court, * * * we must attempt to ascertain the
reasonable value of such services[.]").
Indeed, we previously have held that a party may
collect attorney fees regardless of whether the party incurred
an obligation to pay for the legal services provided. In
Domingo v. Anderson, 325 Or 385, 938 P2d 206 (1997), the
plaintiffs brought an action challenging the notice of sale and
the propriety of the sale of collateral that the defendant had
sold after the plaintiffs defaulted on a loan agreement. The
ORCP 68 A was not adopted until 1980, after the legislature had passed ORS
192.490. It therefore cannot be used, directly, to demonstrate the legislature's
intent in using the phrase "attorney fees." However, we find it a useful demonstra-
tion that the term has more than one plain and ordinary meaning.

defendant prevailed on summary judgment and requested
attorney fees pursuant to a contract. Under the contract, the
plaintiffs had agreed to "pay all costs and expenses" of any
action in which the defendant was required to appear, includ-
ing "[the defendant's] attorney fees." Id. at 387. The defen-
dant's attorney had been hired by the Professional Liability
Fund, a lawyers' professional liability insurance fund, rather
than by the defendant personally. The plaintiffs argued that,
because the defendant had not personally paid the attorney
for his services, the defendant could not collect attorney fees
under the contract. This court disagreed, concluding that the
contract, in requiring only that the plaintiffs pay the defen-
dant's "attorney fees," did not contain any condition requir-
ing that the defendant first be obligated to pay for the attor-
ney's services. 3
Similarly, ORS 192.490(3) provides-without limita-
tion-that any "person" who prevails in a suit seeking the
right to inspect or to receive a copy of a public record shall be
awarded "reasonable attorney fees." There is no requirement
that the prevailing party, or anyone else, be obligated to pay
for the legal services rendered in the suit. Nor is there a
requirement that the "person" who prevailed be a different
person from the attorney whose services procured that favor-
able result. Instead, the term "attorney fees," as used in the
context of attorney fee awards, means the reasonable value of
services performed by an attorney, whether or not anyone
incurs an obligation to pay for those services.
Defendant argues that, even if the term "attorney
fees" does not require an obligation to pay for legal services,
the legislature's use of the term "attorney" prevents an award
of attorney fees to prose litigants. Defendant argues that the
plain and ordinary meaning of the term "attorney" is one who
"provid[es] legal services or representation for an entity or
" Purther, this court cited with approval numerous Court of Appeals cases in
which that court had awarded attorney fees to attorneys who had represented par-
ties free of charge. Domingo, 325 Or at 390 n 7. For example, in State ex rel
Binschus v. Schreiber, 141 Or App 288, 294, 917 P2d 1063 (1996), the Court of
Appeals upheld an award of statutory attorney fees to the mother in a custody pro-
ceeding, despite the fact that the mother had been represented by a legal aid attor-
ney and therefore was not required to pay for her attorney's legal services.

Cite as 349 Or 1 	7
person other than oneself." Thus, defendant argues, an attor-
ney acting pro se is not an "attorney" for purposes of ORS
192.490(3).
Defendant relies in part on Black's Law Dictionary,
which defines "attorney" as follows:
"1. Strictly, one who is designated to transact business for
another; a legal agent.-Also termed attorney-in-fact; pri-
vate attorney. 2. A person who practices law; LAWYER.-
Also termed (in sense 2) attorney-at-law; public attorney."
Id. at 147. Defendant urges us to rely on the first definition,
which focuses on the agency relationship between one who
acts as an "attorney" for another. However, she points to no
reason, and we can think of none, that the legislature would
have intended to use the term attorney in that "strict" agency
sense in the context of a statute authorizing the award of
attorney fees. Instead, the legislature likely intended to use
the term in its ordinary sense--"attorney" simply means an
individual who practices law. 4
Defendant also relies on ORS 9.310, which provides:
"An attorney is a person authorized to represent a party
in the written proceedings in any action, suit or proceeding,
in any stage thereof. An attorney, other than the one who
represents the party in the written proceedings, may also
represent a party in court, or before a judicial officer, in
which case the attorney is known as counsel, and the
authority of the attorney is limited to the matters that tran-
spire in the court or before such officer at the time."
Defendant argues that the first sentence of that statute
defines the term "attorney" and indicates that, to be an attor-
ney, one must have a separate client to represent.
4 Defendant also relies on the definition of "attorney" contained in Webster's,
which is similar to the first definition contained in Black's: "one who is legally
appointed by another to transact business for him; specif: a legal agent qualified to
act for suitors and defendants in legal proceedings." Webster's Third New lnt'l
Dictionary 141 (unabridged ed 2002). However, Webster's defines "lawyer" simi-
larly to the second Black's definition: "a specialist in or a practitioner of law : one
(as an attorney, counselor, solicitor, barrister, or advocate) whose profession is to
conduct lawsuits for clients or to advise as to the prosecution or defense oflawsuits
or as to legal rights and obligations in other matters." Id. at 1280.

We are not convinced that ORS 9.310 sheds any light
on the ordinary meaning of the term "attorney"; instead, it
defines the term for the limited purpose of describing the
agency relationship between an attorney and his or her client
in a given case. See also ORS 9.330 (describing authority of
"attorney," as described in ORS 9.310, to act on behalf of a cli-
ent). In contrast, ORS 9.005(1) defines "attorney" more gen-
erally as "a member of the bar." See also ORS 9.005(7) (defin-
ing"bar" as the Oregon State Bar). ORS 9.005 was adopted in
1975 and provides definitions for purposes of ORS 9.005 to
9.755, which generally describe the responsibilities of attor-
neys. That definition, because it applies in a broader context,
is more akin to the ordinary definition of the term set out in
Black's. It is also more useful than is ORS 9.310 in determin-
ing the plain and ordinary meaning of"attorney."
Plaintiff is an attorney, in the ordinary sense of the
word. He graduated from law school, is a member of the
Oregon State Bar, and is authorized to practice law in this
state. Throughout the proceedings below, he was subject to
the Oregon Rules of Professional Conduct, along with other
statutory provisions that govern the conduct of attorneys.
See ORS 9.527 (Supreme Court may discipline members of
the bar for misconduct, including violation of the Rules of
Professional Conduct); see also In re Glass, 308 Or 297,
301-02, 779 P2d 612 (1989) (attorney acting on his own behalf
violated 	disciplinary 	rule 	prohibiting 	frivolous 	claims).
Because plaintiff is an attorney and because he performed
legal services in seeking disclosure of public records, he is
entitled to collect attorney fees for those services. It is irrele-
vant that he performed those legal services on his own behalf.
The Court of Appeals expressed, in its opinion deny-
ing fees, a concern that permitting pro se attorneys to collect
attorney fees for legal work conducted on their own behalf
would raise the potential for abusive fee generation. Colby,
229 Or App at 172. Although not necessary to our decision
here, we note that the legislature has addressed that concern
by permitting attorney fees only to parties who "prevail[ ] in
the suit" and by requiring that the attorney fee award be
"reasonable." ORS 192.490(3). Further, the legislature has
provided a list of factors that a court must consider in deter-
mining the amount of any attorney fee award, several of

Cite as 349 Or 1 (2010) 	9
which protect against the abusive fee generation potential
that the Court of Appeals feared. See ORS 20.075(1), (2) (list-
ing factors to be considered in determining amount of any
attorney fee award).
We conclude that the Court of Appeals erred in its
interpretation of ORS 192.490(3). Plaintiff, should he "pre-
vail[ ] in [his] suit," ORS 192.490(3), will be entitled to attor-
ney fees for the reasonable value of the legal services that he
performed on his own behalf. We therefore remand to the
Court of Appeals for further proceedings.
The decision of the Court of Appeals is reversed, and
the case is remanded to the Court of Appeals for further
proceedings.