Written by attorney Mark Michael Campanella

Can I Get My Attorney's Fees Paid By My Opponent?

Often times, one of the biggest obstacles to someone commencing or defending a legal action is the inevitable attorney’s fees that he or she will incur. Whenever I’m discussing a potential civil or commercial action with a client, almost without fail, one of the first questions out of their mouths is, “Can I recover my attorney’s fees from my opponent?" The answer, as so often is the case in life, is – it depends.

As a general proposition, successful parties involved in litigation in New York are not able to recover attorney’s fees that they’ve incurred during a case from their opponent. For better or worse, New York views attorney’s fees and other litigation expenses are essentially a cost of doing business in the state, and its courts typically won’t award the winner with compensation for the fees and disbursements it incurred.

That said, nothing in New York is ever cut and dry, and in this case, that’s a good thing. Although attorney’s fees are typically not recoverable, there are some limited instances where they can be. In order to recover attorney’s fees in our fair state, the award must either be contractually sanctioned, meaning that it was provided for in some agreement between the parties, or allowed by statute or court rule.

The former scenario is fairly typical and easily illustrated. It’s a rare occasion nowadays where a contract that two people enter into doesn’t t contain a clause setting forth not only the manner in which a potential claim is to be handled (i.e., arbitration versus in court), but also a provision setting forth the conditions under which one party or both parties are entitled to the recovery of their reasonable attorney’s fees and expenses. Readers will find that many types of agreements or contracts that they’re already familiar with, including, but hardly limited to, documents like mortgages and apartment leases, contain such provisions.

Most individuals with contractual provisions requiring them to either pay or alternatively entitling them to compensation for attorney’s fees almost always seem recognize that fact before they walk into my office. The more unusual question is, when else might one be entitled to recover attorney’s fees when there’s no contract in place? As suggested above, New York’s legislature has seen fit to recognize certain specific instances under which attorney’s fees are recoverable.

The statutes and court rules that allow the recovery of attorney’s fees in New York either outright permit a prevailing party to recover its costs and fees against a losing party, or they allow a party to recover their fees where it is determined that their opponent engaged in frivolous conduct relative to bringing a non-meritorious action. Here are a few statutory examples wherein prevailing litigants can recover reasonable attorney’s fees and costs, but please note that this is NOT, nor is it meant to be, a complete list.

Although not a New York law per se, the federal Fair Debt Collection Practices Act contains a provision entitling debtors to recover not only actual damages suffered, but also attorney’s fees against creditors and/or their agents (i.e., debt collectors or attorneys representing them) that have engaged in abusive conduct which violates the permissible collection tenets set forth in the law.

As far as New York specific laws are concerned, Rule 130-1.1 of Title 22 of the New York Codes, Rules and Regulations is a rather important one. This rule allows the court, in its discretion, to award a prevailing party in a civil action the recovery of its costs and reasonable attorney’s fees as a monetary punishment for the losing party engaging in frivolous conduct during the course of the litigation. Civil Practice Law and Rules Section 8303-a similarly allows a court to award up to $10,000 in costs and reasonable attorney’s fees to a litigant if his opponent has offered a frivolous claim or defense in either a personal injury or wrongful death action.

In order to be deemed frivolous, there can be no question under the existing case law that the claim or defense had no chance of success and that there was no reasonable argument to extend, modify or reverse the law in such a way as to make the claim or defense meritorious. The standard for what constitutes a “frivolous" action is more fully a matter for another article, but needless to say, it is typically a rather high burden to meet, and one that the courts don’t rush to award unless the conduct at issue is truly egregious.

This article cites only a few examples of laws that allow a successful party to the recovery its attorney’s fees, but there are still other instances. For the sake of brevity (and because this isn’t meant to be an exhaustive list), I’ll note a couple other examples. In New York, a party can not only sometimes recover attorney’s fees in employment discrimination cases, but plaintiffs injured by the deceptive, misleading or fraudulent actions of a business in New York can also recover reasonable attorney’s fees per statutory rule.

My point in citing these two last random examples is simple. Although New York law generally doesn’t allow a party to recover his or her attorney’s fees and disbursements from another in a litigated matter, there are situations (albeit limited) under which you might be able to recover. Given the nuances of our judicial system, while you probably won’t like the final answer provided you, it’s never a bad idea to ask your attorney whether your case might be one of the ones that could potentially get your fees paid; the answer just might surprise you.

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