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September 02nd 2013

Clients are often justifiably concerned about the attorney’s fees they will incur in their lawsuit and often ask if there is a way to recover attorney’s fees from the other party. Generally speaking, Florida follows the “American rule” which provides that in the absence of a statute,  a contract or a rule authorizing an award of fees, each side pays its own attorney’s fees.There are rare exceptions to this rule which I will discuss below but first let me address the general rule.
Almost any properly drafted contract between two parties will have a “prevailing party” attorney’s fee provision. This means that if one party sues for breach of contract and wins, that party is entitled to its attorney’s fee as the “prevailing party.” Additionally, there are several state and federal statutes that provide for attorney’s fees to the party that wins the lawsuit. For example, in almost any lawsuit against your insurance company, the insurer will have to pay your attorney’s fees under Florida Statute 627.428 if it pays a claim that was initially denied (as this operates as a confession of judgment), or, if you go to trial and obtain a judgment against the insurer. Similarly, under 42 U.S.C.1988 a plaintiff prevailing on a federal civil rights claim may be entitled to their attorney’s fees.
But let’s assume that in your particular case there is no contract or statute that provides for attorney’s fees. What to do?  If you were forced into the litigation by a third party you may be able to cover fees under what is known as the “wrongful act doctrine.” This doctrine was recently applied in a case out of Florida’s Fourth District Court of Appeal in the case of Schwartz v. Bloch. There, the plaintiff consulted a law firm for asset protection advice before his pending marriage. The law firm advised him to assign his interests in family businesses to other family members. Thereafter, when some of the other family members sought to oust the plaintiff from the family businesses and deny him access to bank accounts, the plaintiff sued the family members and the law firm, whom he claimed committed malpractice. The jury returned a verdict in favor of the plaintiff which included a $250,000.00 attorney’s fee award against the law firm. The trial judge granted the law firm’s post-trial motion to vacate this award but on appeal to the Fourth District the court held that the award should be reinstated under the “wrongful act doctrine” as the law firm’s malpractice forced the plaintiff into litigation to protect his rights.
The holding in Schwartz must be viewed with caution as almost any plaintiff could argue that he was forced into filing suit because of the wrongful acts of a third party. It certainly doesn’t hurt however to mention to your attorney that you’re aware of this doctrine if you’re ever forced into litigation by a third party and there is no contract or statute that provides for attorney’s fees.
Other exceptions to the “American rule” concerning attorney’s fees are in false arrest/false imprisonment, malicious prosecution, slander of title cases.