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Can I recoup my attorney's fees?

A common question that arises in the context of business and construction litigation is whether attorney's fees are recoverable from the adverse, losing party.

The simple answer is that, as a general rule, under long-standing Louisiana law, attorney's fees are not allowed except where authorized by statute or contract. See, e.g., Maloney v. Oak Builders, Inc., 235 So.2d 386, 390 (La. 1970). The rule in Louisiana is similar to the so-called "American rule," where each party pays its own attorney's fees and a prevailing party is not permitted to collect attorneys' fees from the losing litigant. Alyeska Pipeline Serv. Co. v. Wildness Soc., 421 U.S. 240, 247 n. 18 (1975) (internal citation omitted).

Whether attorney's fees are allowed when authorized by contract is relatively straightforward. In Louisiana, "[p]arties are free to contract for any object that is lawful, possible, and determined or determinable." La. Civ. Code art. 1971. Less straightforward but still routinely enforced by Louisiana courts are unilateral attorney's fees clauses, where only one party is entitled to attorney's fees upon victory.

Attorney's fees are also authorized under numerous Louisiana statutes and code articles. For example, attorney's fees are available with respect to a suit on open account (La. Rev. Stat. § 9:2781), a claim under Louisiana Unfair Trade Practice and Consumer Protection Law (La. Rev. Stat. § 51:1409), fraud (La. Civ. Code. art. 1958), and redhibition (La. Civ. Code art. 2545), to name just a few.

While attorney's fees are not automatically available when prevailing in litigation (as they sometimes are in non-U.S. jurisdictions), it is important to consider including attorney's fees provisions in contracts, if applicable, and to fully investigate whether your claim or defense falls within one of the statutory exceptions to the general rule.

Imtiaz Siddiqui