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Reinventing the Practice of Law


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Maximizing Your Recovery in Fee-Shifting Cases (Illinois Bar Journal, February 2015)

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What if lawyers who provide personal legal services could represent clients without charging them for their legal services?

A Massachusetts law firm represents tenants in housing matters on a fee-shifting basis. A Chicago firm represents parents of children in need of individual education plans in litigation with the schools system on a fee-shifting basis.  

Fee-shifting statutes and rules vary, sometimes requiring the loser in a legal matter to pay for the legal fees and costs of the prevailing party. But in some circumstances, the fees are unilaterally shifted so that losing defendants must pay the plaintiff’s reasonable attorney fees and costs. These provisions are designed to attract lawyers to public interest cases that otherwise would not seem worth the investment. The “American Rule” requires each party to bear its own attorney's fees in litigation absent a statutory or contractual exception.[i] Fee-shifting provisions are the exceptions to that general rule. The clients do not pay advance fees or retainers; attorneys collect payments through the fee-shifting provision or a settlement agreement. The threat of paying attorney’s fees can add pressure to the opposing party to settle the case and settle it quickly.

Massachusetts General Laws Ch. 186, Section 14 is a good example of a fee-shifting statute. It provides for reasonable attorney’s fees in certain landlord-tenant disputes where the landlord is in violation and subsequently loses the case. Tenants who are facing eviction notwithstanding their habitability claims are among those with the greatest difficulty in obtaining a lawyer. However, the availability of attorney's fees creates the circumstance where lawyers are more likely to accept cases on behalf of tenants against landlords.

Of course, because payment comes at the end, attorneys relying on fee-shifting must be aware of the startup capital required as well as the importance of selecting meritorious cases. An in-depth description of how fee-shifting works, as well as a guide to successfully running a “public interest private law firm,” can be found in the ABA book, Reinventing the Practice of Law.

[i] See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975); see also Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000)

See Marek v. Chesney, 473 U.S. 1 (1985)