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A Litigant’s Ability to Recover Attorney’s Fees

Posted & filed under Litigation.

columnsA common question we receive from clients considering filing a lawsuit (or who have been sued) is if they can recover their attorney’s fees and costs when they win. Generally, under Georgia law, the answer to this question is ‘no.” There are, however, certain instances when attorney’s fees may be awarded.

The most successful attorney’s fees claims are those based on contractual attorney’s fees. Some contracts contain “prevailing party attorney fees” provisions. Under these provisions, if there is a dispute over the contract at issue, the party that wins may be entitled to his attorney’s fees. Thus, if your lawsuit involves a breach of contract, the first place to look is the contract.

Litigants often see a separate count for attorney’s fees asserted in a lawsuit under O.C.G. A.§ 13-6-11. A plaintiff in Georgia can recoup their attorney’s fees under this code section when a defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble or expense. To have a strong claim for 13-6-11 fees based on bad faith, any such bad faith conduct must arise out of the transaction that caused the lawsuit (not a defendant’s conduct in defending a lawsuit). If there is any legitimate controversy present in the lawsuit (i.e., if the defendant can come up with some reasonable argument or defense), courts are unlikely to find a defendant stubbornly litigious. While these fees are not usually easy to get, this is a potential source of fees in extreme cases.

Another Georgia statute, O.C.G.A. § 9-15-14, may provide litigants an ability to recover their attorney’s fees if a court finds that the opposing attorney or party brought or defended a lawsuit that lacked any “substantial justification” whatsoever or if such attorney or party unnecessarily expanded the litigation by improper conduct (i.e., abusing the discovery procedures). A lawsuit lacks “substantial justification” when it is substantially frivolous, groundless, or vexatious. In such cases, courts may award reasonable attorney’s fees.

At the end of the day, in business disputes, absent an attorney’s fees provision in a contract, litigants should not expect to recover the cost of their attorney. While both O.C.G.A. §§ 13-6-11 and 9-15-14 sound like promising ways to shift the burden of litigation to the opposing party, both statutes are intended to apply to the limited circumstances of bad faith and improper conduct.

This article is not intended to establish an attorney-client relationship and is not intended to confer legal advice. No attorney-client relationship should be inferred in the absence of a written and executed engagement agreement that expressly indicates the creation of an attorney-client relationship.

Written by: Heather Wagner