Attorney Fees: Does my Opponent Have to Pay if I Win?
by Ingrid Johnson
Thursday, November 7, 2019
Clients often ask if they can get the other side to pay their attorney fees. The answer is usually no.
In courts in the U.S., the general rule is that each party pays their own attorney fees regardless of who wins and who loses. However, there are exceptions. The most common exceptions are:1) a contract between the parties shifts the burden of attorney fees, and 2) a statute applies to the cause of action which shifts the attorney fees.
Attorney Fees by Contract
Parties to a contract can include an attorney fees provision within their contract. For example, a provision can state that if litigation arises, the losing party must pay the winning party’s attorney fees. Another example is an entity indemnifying another entity for liabilities, including attorney fees, for claims a third party brings against it. That is, if one entity is sued by a third party, the second entity will pay for the action and the first entity’s attorney fees. Contractual provisions like these are not always enforceable, but courts generally allow them.
Attorney Fees by Statute
The second most common way attorney fees can be shifted to a losing party is if a statute allows it. Below is a list of Iowa statutes that can shift the burden of paying attorney fees:
- Open Meetings Act, Iowa Code § 21.6
- Public Records Act, Iowa Code § 22.10
- Whistleblower statute, Iowa Code § 70A.28(5)(a)
- Wage payment collection, Iowa Code § 91A.10
- Iowa Civil Rights Act, Iowa Code § 216.15A(11)
- Derivative action under the Uniform Limited Partnership Act, Iowa Code § 488.1005
- Derivative action under the Business Corporations Act, Iowa Code § 490.746
- Derivative proceeding under Nonprofit Corporation Act, Iowa Code § 504.637
- Consumer Credit Code, Iowa Code §§ 537.3621, 537.5108, 537.5201
- Violation of franchise agreement, Iowa Code § 537A.10(13)
- Trademark violation, Iowa Code § 548.114
- Trade Secrets Act violation, Iowa Code § 550.6
- Actions under the Uniform Landlord and Tenant Act, Iowa Code § 562A.12(8)
- Enforcement of a Mechanic’s Lien, Iowa Code § 572.32
- Nonstatutory Liens, Iowa Code § 575.1
- Action to recover on a dishonored check, Iowa Code § 625.22
- Judicial proceeding involving the administration of a trust, Iowa Code § 633A.4507
- Wrongful taking, concealing, or disposing of trust property, Iowa Code § 633A.4605
- Action for damage to crops, Iowa Code § 717A.3
- Action for damage to animal facilities, Iowa Code § 717A.2
- Hate Crimes Act, Iowa Code § 729A.5
- Polygraph, drug and alcohol testing violation, Iowa Code §§ 730.4, 730.5(15)
Some of the above statutes allow a party to collect attorney fees if they are successful. Others require the party not only to be successful, but also to prove that the losing party brought the action in bad faith or that their claim was frivolous.
If you have multiple claims against a party and only one falls under the statutory or contractual allowance for attorney fees, a court will likely only award attorney fees for the time your attorney spent on that one claim and you will be responsible for paying the rest. Additionally, even if attorney fees are shifted by contract or by statute, a court has discretion to decrease the amount of attorney fees the other side has to pay.
There are other statutes that shift attorney fees and the above list only names a few. Although this list looks numerous, in practice, it is more common that each party is responsible for their own attorney fees.