This article discusses some of the ways to eliminate the need to pay out-of-pocket attorney fees. Depending on the type of case, attorneys may charge an hourly fee, a flat fee, or a contingency fee. When an attorney charges a contingency fee, the attorney is only paid if they win the case or reach a settlement. Contingency fees are typically only used in plaintiff’s work.
Individuals can also recover attorney fees when a contract between them and the opposing party contains a fee shifting provisions. There are two types of fee shifting provisions: bilateral and unilateral. A bilateral fee shifting provision is used in contracts to protect parties from litigation and requires the party that losses a lawsuit to pay the prevailing side’s attorney fees. A unilateral fee shifting provision only shifts attorney fees when a specified party requires legal services. For example, a contract, such as a lease, might state that the tenant has to pay a landlord’s attorney fees when the landlord requires the services of an attorney. In this example, the landlord can bill their tenant for the cost of attorney fees accrued prior to the start of a lawsuit. A judge does not have to approve of fees accrued prior to the start of litigation, unless the lawsuit involves those these charges. Then, if a landlord is successful in litigation, a judge could award the landlord attorney fees accrued during litigation. In this example and in many other scenarios, the law will state if the party that is not protected by the unilateral fee shifting provision is successful in litigation that party can collect attorney fees from the protected side. (While unilateral fee shifting provisions are legal in Maryland, many states do not permit unilateral fee shifting.) Despite what a contract may state, a judge can choose not to enforce a fee shifting provision. When a judge does not enforce the provision, neither side will recover attorney fees from the opposing party.
In addition, there are many laws that shift the cost of attorney fees to lessen the financial burden for certain types of people, such as consumers when suing over a product they purchased, employees when suing over unfair labor practices, or tenants when suing for failure to accommodate a disability or for the return of their security deposit. (Many types of consumers are protected, including tenants, purchasers of products, clients of banks, etc.) In these cases, if the protected individual prevails on a significant issue they may be entitled to attorney fees. (A party does not have to prevail on all issues or recover all of the damages that he or she sought to be awarded attorney fees.) These types of laws are designed to discourage improper behavior by people and companies with superior economic power and to encourage lawsuits that will further public policy goals. In addition to awarding attorney fees, some laws permit protected individuals to collect more than the amount needed to cover their damages; sometimes three times more than they are damaged.
