Many tenants in need of legal assistance, as well as landlords involved in legal cases with tenants, often ask about the fee for a tenant attorney. Most people are familiar with the general model for hiring an attorney: the attorney takes an upfront amount of money and bills the client for their time. The other common type of billing is a contingency fee, where the attorney takes a fixed percentage of the amount recovered from the case. In Massachusetts, another type of payment for legal services is also available to tenants: fee shifting.
Fee shifting is a provision in a law that requires the losing party to pay the other side’s legal fees. Generally, under the American Rule for legal fees, each side bears their own legals fees in a legal matter. If you spend $10,000 in legal fees to recover a judgment of $5,000, you only get $5,000 in the end (and will have lost the remaining amount spent on the case). A fee shifting requirement in a law allows the prevailing party to recover these attorney fees if their case is successful. Many landlord/tenant laws contain such a provision, where the tenant is awarded reasonable legal fees if the claim is successful. Importantly, many of these laws do not require the tenant to have accrued the legal fee. In other words, there is no requirement that the tenant had actually spent money towards paying the attorney: the fee for a tenant attorney is still permitted if the underlining claim is successful.
Fee shifting provides a powerful incentive for tenants to pursue claims against landlords. Without fee shifting, tenants and lawyers have little incentive to consider taking on claims against landlords. The damages that could be recovered from one of these claims may be too small to make it worth the trouble. With fee shifting, however, the fee for a tenant attorney becomes part of the case, and can be recovered through settlement or a judgment from the court.
With this in mind, both tenants and landlords should keep in mind the potential fee for a tenant attorney in evaluating a potential landlord/tenant claim. The potential for damages in one of these cases is an important factor for both sides in attempting to resolve one of these matters.