Attorney’s Fees

When considering litigation, parties must assess both the strength of their claims and the significant costs of trial. Attorney’s fees can help offset these costs, but Washington courts follow the “American Rule,” and will not award fees unless authorized by contract, statute, or a recognized equitable exception. City of Seattle v. McCready, 131 Wn.2d 266, 274, 931 P.2d 156 (1997). Therefore, litigants should consider whether a contractual, statutory, or equitable exception entitles them to attorney’s fees when contemplating litigation.

Where a litigant is unable to identify a contractual or statutory provision authorizing attorney’s fees, they must rely on one of the four recognized equitable exceptions to the American Rule. Under the exceptions, attorney’s fees may be awarded, (1) where an action is brought for the benefit of a common fund (e.g., labor union fund); (2) where the wrongful act of the defendant resulted in litigation between the plaintiff and another party; (3) where the losing party engaged in bad faith or misconduct; or (4) in an action to dissolve wrongfully issued temporary injunctions or restraining orders. Id. (citations omitted). While statutory and contractual fee-shifting provisions provide the clearest path, litigants should also explore equitable exceptions that may justify an award of attorney’s fees.

Understanding the potential for recovering attorney’s fees is important when weighing the costs of litigation. While contractual and statutory fee shifting provisions provide the most straightforward path, equitable exceptions may also offer relief in certain circumstances. By carefully evaluating these options, litigants can better assess their financial risks and make informed decisions when pursuing litigation.