The general rule in most states is that a party in a civil action is not entitled to recover attorney’s fees unless the claim is based on either a contract or statute that authorizes such a recovery. But in some jurisdictions there is a lesser-known way a party may recover fees: The Wrongful Act Doctrine, which permits the recovery of attorney fees when one incurs such fees as a result of unnecessarily having to maintain or defend a lawsuit with a third party.
For example, let’s say Seaside Condominium sues Able Contractors for defective work, and Able Contractors, in turn, brings a claim against one of its subcontractors, Strong Pipe Installers. Let’s also say it is eventually shown that the wrongful acts of Seaside (such as lack of proper maintenance) were the real cause of the problem and not anything having to do with Strong Pipe. It would then be possible under the wrongful act doctrine for Strong Pipe to lodge a claim against Seaside for the legal fees it incurred.
To be clear, one cannot recover fees under this doctrine if one’s own wrongful acts contributed to the litigation. And because fees under the Wrongful Act Doctrine are considered an element of damages, they must be pled within the initial pleadings.
Before you give up on the idea of recovering legal fees, take a closer look to see if the Wrongful Act Doctrine could be applied to the facts of your case. It won’t make litigation any less stressful or time consuming, but it could reduce the expense.