Repeals and amends existing law to revise provisions regarding attorney's fees in civil actions.

This bill amends section 12-121, Idaho Code, regarding the award of attorney fees in civil cases. On September 28, 2016, in a split decision, the Idaho Supreme Court issued a decision in the case of Hoffer v. Shappard, which changed a decades old interpretation of section 12-121. As originally drafted in 1976, the section gave the courts discretion to award attorney fees to prevailing parties. In 1979, the Supreme Court took that discretion and by court rule limited the award of attorney fees to cases which were brought, pursued or defended frivolously, unreasonably or without foundation. The effect was that litigants for the most part have paid their own attorney fees unless the court found the claim or defense was brought or pursued frivolously, unreasonably or without foundation, or unless attorney fees were otherwise provided for by a different statute or by contract. This structure has worked to protect citizens' access to the courts, while penalizing those who sue or defend frivolously. The Court in Hoffer prospectively rescinded its own rule, effective March 1, 2017, and applied a new interpretation of section 12-121 to award attorney fees to the prevailing party "when justice so requires." This places the award of attorney fees in the discretion of each judge without, resulting in uncertainty to litigants, and potentially chilling access to courts due to that uncertainty, and promoting judge shopping. The proposed amendment restores the rule of awarding attorney fees when cases are brought, pursued or defended frivolously, unreasonably, or without foundation, and places it in statute.