How to Get Attorneys' Fees in Virginia

A question that practicing attorneys hear repeatedly from prospective clients is whether they can receive reimbursement for their attorney’s fees from their opponents. Outside of domestic relations and a few other practice areas, unless there is a contractual or statutory basis for awarding attorneys’ fees, courts will not typically award them. According to the “American Rule,” each party should pay for its own legal costs, including attorneys’ fees. The Commonwealth follows the American Rule. (Lee v. Mulford, 269 Va. 562, 585 (2005)).

Typically, you can receive an award for your attorneys’ fees if you can successfully establish a basis for your legal expenses. If your underlying contract provides a prevailing party with attorneys’ fees, if you win, your attorney may be able to convince a court to award them in your favor. Similarly, you may be able to receive legal fees from the losing party based on a statute. For example, the Virginia Code allows courts to award legal fees and costs against either prevailing or losing parties in domestic relations cases in the interests of justice for temporary spousal support or for child support. The Virginia Residential Landlord and Tenant Act similarly allows courts to award reasonable attorneys’ fees to tenants asserting their landlords breached their lease agreements by failing to provide essential services or evicting them without cause. Courts may also award attorneys’ fees as a sanction against attorneys for filing frivolous pleadings.

In rare cases, a judge may award attorney’s fees to a party pursuant to § 16.1-278.19 of the Va. Code. This code section allows a court to award attorneys’ fees and costs as deemed appropriate and based on each party’s financial abilities.

In the commonwealth, a court may award attorneys’ fees only when your attorney provides it with an affidavit setting forth its basis for her fees. Your attorney must file her affidavit according to Rule 3:25 of the Virginia Supreme Court’s Rules and with a responsive pleading, original bill of complaint, warrant in debt or other statutorily allowable legal filing. By scheduling an initial consultation with our office, we can discuss whether you have a legal basis to claim attorneys’ fees.

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