Recovering Attorney's Fees - There Are Some Exceptions to the So-called American Rule
March 4, 2007
Robert S. Murphy, Jr., Esquire
Civil trial attorneys frequently encounter potential clients who have valid legal claims but simply cannot afford to pursue them because of the expense of litigation. It is a frustrating situation for both lawyer and client alike to abandon such claims; however, that is the nature of the so-called American Rule which requires that each litigant, even a successful one, bear his or her own attorney’s fees.
Unlike the tradition in some European countries, where the losing litigant pays the winner's attorney's fees, a business or person who successfully defends a case with limited exceptions, has no recourse to obtain payment of his attorney's fees. This fact is equally frustrating to defendants and their attorneys. As with most legal rules, there are exceptions to the American Rule. This article is intended to briefly identify and discuss those situations where a litigant can recover his attorney’s fees.
Under Massachusetts law, a litigant may not recover his attorney’s fees unless permitted by court rules, agreed to by contract or stipulation, or permitted by statute. An award of attorney’s fees by court rule usually arises from some sort of litigant misconduct such as filing baseless pleadings, violating court orders or engaging in over-aggressive litigation techniques. Misuse of the judicial process in a general sense may allow a court to award payment of attorney’s fees as a sanction to discourage litigants in general, and the parties before the court in particular, from abusing the legal process. Experience with the local bar has shown that this type of abuse is rare.
A litigant cannot rely on obtaining payment of their attorney’s fees via court rules.
While the American Rule is that parties are responsible for their own attorney’s fees, there is nothing to prevent parties from agreeing by contract to pay fees. ...
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BusinessWest
February 5, 2007
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