Attorney’s Fees in Virginia
Clients often ask, “Will I be able to recover the fees I pay for your services?” In most cases, Virginia follows the American Rule on attorney’s fees. The American Rule provides that parties must typically pay their own attorney’s fees unless expressly provided for in a governing statute or in most cases where the parties have otherwise contractually agreed to a fee-shifting arrangement that entitles the “prevailing party” to recover its attorney’s fees from the “losing party.” See, e.g., W. Square, L.L.C. v. Commc’n Techs., Inc., 274 Va. 425, 433, 649 S.E.2d 698, 702 (2007). But see Prospect Development Co. v. Bershader, 258 Va. 75 (1999) (stating “fees are proper if the trial court, exercising its discretion in a fraud case, awards equitable relief, and further determines that the circumstances surrounding the fraudulent acts and the nature of the relief granted compel an award of attorney’s fees.”); St. John v. Thompson 854 S.E.2d 648 (2021).
Under Virginia law, not all contractual fee shifting agreements are enforceable. See, e.g., Flint Hill Sch. v. McIntosh, Va. No. 181678, 2020 WL 33258, at *5 (Va. Jan. 2, 2020). In Flint Hill Sch., the Virgina Supreme Court held that attorneys’ fees provisions that are overly broad and create inequity so gross that shocks the conscience are void and unenforceable. Id.
Even in situations where entitlement to attorney’s fees is found to exist, the reasonableness in the amount of an award of attorney’s fees is subject to the discretion of a Virginia court. See, e.g., Lambert v. Sea Oats Condo. Ass’n, Inc., 293 Va. 245, 254, 798 S.E.2d 177, 183 (2017) (quoting Manchester Oaks Homeowners Ass’n, Inc. v. Batt, 284 Va. 409, 429, 732 S.E.2d 690, 702 (2012)). In arriving at its decision as to the amount of attorney’s fees, a Virginia court will weigh multiple factors including but not limited to: “[ (1) ] the time and effort expended by the attorney, [ (2) ] the nature of the services rendered, [ (3) ] the complexity of the services, [ (4) ] the value of the services to the client, [ (5) ] the results obtained, [ (6) ] whether the fees incurred were consistent with those generally charged for similar services, and [ (7) ] whether the services were necessary and appropriate.” Id. “These seven factors are not exhaustive.” Id.
Additionally, under Virginia law, determining who is the “‘prevailing party’ often requires evaluation of the proof, pleadings, pretrial and trial rulings and verdict dispositions in an action . . . .” Graham v. Cmty. Mgmt. Corp., 294 Va. 222, 232, 805 S.E.2d 240, 245 (2017). There is no “prevailing party” when a nonsuit is awarded. Sheets v. Castle, 263 Va. 407, 414, 559 S.E.2d 616, 620 (2002).
Va. R. Sup. Ct. 3:25 provides procedural requirements for pursuing claims for Attorney’s fees in Virginia state courts.
Although we cannot guarantee that we will obtain attorney’s fees on your behalf, attorneys at Robert Moore Law will make every effort to pursue attorney’s fees on your behalf and defend you in any claims against you for attorney’s fees. In the event that attorney fees are recovered on your behalf, you will receive a “dollar for dollar” credit for any and all statutory or contractual attorney fees collected, awarded, and received against the attorney fees set forth in our representation agreement.