“Actual” Versus “Reasonable” Attorneys’ Fees
It is time to change your commercial lease agreement to provide for a provision asserting entitlement to “actual” legal fees, rather than any reasonable attorneys’ fees that a Court grants in its discretion. Why compromise? If you spend money to pursue your rights, then you should recoup your entire expenditures. Courts may award attorneys’ fees to a party where such an award is authorized by agreement between the parties, statute or particular Court rule.
It is well settled law that a written agreement that is complete, clear and unambiguous on its face must be enforced according to its plain meaning of its terms. Greenfield v. Philles Records, 98 N.Y.2d 562 (2002). Then why settle for less when it comes to your legal fees? Make sure to insert a clause that you are entitled to “actual” cost/expense of legal fees incurred and maintain good records.This then should eliminate the need for a hearing to dispute expenditures, if supported by actual authenticated invoices. While a Court maintains the discretion to determine what is “reasonable,” as the prevailing party you should be able to assert your rights to “actual” expenditures if that is what the parties agreed to unless the Court finds them to be excessive which would then run contrary to the Rules of Professional Conduct. [DR 2-106] “Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity.” Id.
New York Courts should follow this very basic premise. It is reversible error to reduce a fee in order to “err on the side of conservatism and avoid contribution toward the overpricing of litigation,” where the counsel fees are sufficiently and appropriately documented. Continental Building Company Inc. v. Town of North Salem, 211 A.D.2d 88 (3rd Dept. 1995).
The takeaway here is, strengthen your rights under your commercial lease agreement with such a provision, at least then the door can open to the recovery of full attorneys’ fees.
SKH Heiberger, LLP can provide you with the assistance needed.
