Can I Make My Opponent Pay My Legal Fees?

Another question that is asked all the time is: Can I make my opponent pay my legal fees? 

In general, the answer is no. We follow the so-called American Rule in this country. Each party is responsible for his/her own costs and fees. There are exceptions when contracts or statutes that are pertinent to the controversy provide for shifting of costs and fees. Apartment leases, as an example, typically recite that if the landlord must pursue the tenant for the rent, the tenant will also be chargeable for the attendant costs and fees. Many of the statutes which govern discrimination in the workplace also make allowance for fee-shifting.

There are some who assume that because a fee-shifting agreement or statute is available, their own attorney will have no recourse against them but only against their opponent. It does not work that way, however, unless the attorney agrees to look solely to the opposition for compensation. 

Prudent counsel will make it clear early on that the obligation to compensate the attorney is on the client, not on the client's opponent; that the attorney will look to the client for that compensation; and that the client may, in  turn, invoke the fee-shifting to pursue reimbursement from the opposition. 

Fee Shifting: Charging the Adversary for One's Own Legal Fees

 by David McCarthy

The most frequently asked question of all is whether one's legal expenses (and attorney's fees in particular) can be charged to an opponent. In general, the answer is no, each party bears its own litigation fees and costs. This is called the American Rule. 

There are exceptions when fee-shifting is called for by a relevant contract (e.g., an apartment lease) or a statute (e.g., the Illinois Wage Payment and Collection Act). (Typically, the client will pay its own attorney and then, if the client is also the "prevailing party," invoke the contract or the statute in support of an application for an order obligating the opponent for the fees.)

   When preparing or vetting contracts for clients, we put a lot of energy and attention on fee-shifting clauses. And we get push back from the other side all the time. A lot of advantage and disadvantage rides on the existence and content of a fee-shifting clause in a contract.

   As for statutes that permit or require fee shifting, they are as a rule available only to plaintiffs as applied even though many of them are neutral on their face (employing the term "prevailing party"). Make no mistake: They are game changers that alter the balance of power in favor of plaintiffs. We know it, and we have leveraged them to the great advantage of our clients.

   The rough equivalent for defendants is a motion for sanctions for frivolous pleadings on the part of a plaintiff. They are rarer than cases with fee-shifting potential because the conduct necessary to support an award of sanctions must be beyond the pale. (We have made three motions for sanctions, defended one, and have not lost yet.)