Don’t worry, this isn’t a discussion about where to put the apostrophe in attorneys’ fees. (But, yes, it goes after the s, to avoid getting into fights over whether it covers fees of just one attorney.)
Instead, my beef is with the word attorney.
Recently I saw the following in this “Gentleman Scholar” column:
What’s the difference between a lawyer and an attorney? The latter, introducing himself as such, believes that the extra syllable confers an extra degree of fancy-schmanciness.
I concur. I propose that we drop attorneys’ fees on grounds of foppishness.
What should we use instead? The obvious alternative is lawyers’ fees, but I propose legal fees: no apostrophe, and it would cover paralegal fees too.
15 thoughts on “Pomposity in Drafting, Part One: “Attorneys’ Fees””
Shocked I am that you have not been overwhelmed with comments on this topic, for it is close to the heart and wallet of every practitioner. A few comments:
1/ A lawyer is a law school graduate (one skilled in the law; cf. “sawyer,” “collier”; an attorney is someone admitted to practice on behalf of another (“attorney” implies substitute, surrogate, or vicar as in vicarious. It’s not just a case of “an attorney is a lawyer putting on airs.” Most, if not all, attorneys are lawyers, but not vice versa.
2/ I’m not sure “attorneys’ fee clauses” (oops, “provisions”) often have such fees standing alone. In my experience, they follow “including,” as in “all costs of enforcing, interpreting, or securing this agreement, not limited to attorneys’ fees.” Paralegal fees would fall under the general “costs” part of the provision, not the legal fees part. The other costs could be (if the court will allow them) investigators’ fees, asset searches, service of process fees, filing fees for certificates of lien on land records, and more.
3/ The Yiddishism “fancy-schmancy” is a nostalgic reminder of a world brutally lost and a language on its last legs.
Regarding the lack of comments, posting this on the Saturday of a Labor Day weekend might have something to do with it!
Regarding your first point, I believe that you have most commentators arrayed against you. See, for example, http://abovethelaw.com/2009/07/lawyer-vs-attorney-a-distinction-without-a-difference/
My mother’s first language was Yiddish. Not that that left much of a trace on me.
Ken, notwithstanding Lubet’s (offhand?) commentary, as a foreigner in the US I am, and was made, aware by my state board that “attorney” is legally protected in the US, just as “solicitor” is in other jurisdictions. I have been a lawyer in 3 countries, but an attorney in only one.
I does beg the question semantically whether a UK solicitors firm might be denied attorneys’ fees if they employ no attorneys!
Your state board is making stuff up. The one reference work I have on my Kindle, Garner’s Modern American Usage, notes that “lawyer and attorney are not generally distinguished even by members of the legal profession.”
“lawyer and attorney are not generally distinguished…”
Explains why we’re held in such low repute, wot?
My mother’s first language was Yorkshire. They prefer “nowt fancy”.
The name attorney was inherited from England. It was common in Dickens’ day, as can be seen from several of his character who were attorneys. English lawyers abandoned this professional name in the late nineteenth century, possibly because of the bad press it got – “pettifogging attorney” was a term of abuse – and settled for the equally longstanding title of solicitor. Our Law Society (equivalent of a national bar association) was originally called (in 1845) “The Society of Attorneys, Solicitors, Proctors, and others not being Barristers, practising in the Courts of Law and Equity of the United Kingdom”. See the original constitution here: http://www.lawsociety.org.uk/about-us/our-constitution/
More recently, the name has been reclaimed by British and European patent agents, who nowadays call themselves patent attorneys, probably because the US has popularised the name.
My view is that as an English solicitor I am entitled to call myself an attorney, at least in England!
History lessons aside, I agree that “legal fees” is simpler and better, particularly in international contracts where lawyers in other countries may have different titles.
It’s amusing that English lawyers abandoned attorney and American lawyers embraced it, in each case in an attempt to class things up.
This is a little bit off topic, but I often see a phrase allowing the prevailing party in a dispute to collect “costs and attorneys’ fees.” I think both of those have a specific meaning, so I wonder if things like expert witness fees have been omitted. I’ve never had the energy to research it when almost everyone accepts me making it more generic.
For that reason, I prefer something like “legal fees,” but I even more prefer something generic like “all out-of-pocket expenses reasonably incurred in the dispute” or something along those lines. (Note that there is still a question about how the dispute must relate to the agreement. For example, must it be a dispute about a duty under the agreement? Or need it only be related to the subject matter of the agreement?)
Chris: You might find MSCD on costs and expenses helpful. It’s at 13.128. Ken
“Attorney” originally meant much the same as “agent”, a usage that still exists in the expressions “power of attorney” and “attorney-in-fact”. Legal attorneys are, of course, “attorneys-at-law” by contrast. Lawyers are known as attorneys because they act on behalf of clients.
While that is historically interesting, I don’t think it would be easy to argue now that a lawyer is only an “attorney” if he or she has the authority to represent the client in some context (in court or in negotiation) and not if merely giving advice. The meaning has broadened to the point where I can’t think of any lawyers that would be excluded (leaving aside any technical rules that jurisdictions might have over what you can and can’t call yourself depending on your practising status).
On the main question, I would use “legal costs”, as I think that picks up both fees and disbursements. Having said that “legal fees” probably would be interpreted as including disbursements, and disbursements might be caught under another heading in any case.
To avoid any debate, I’d say legal fees and expenses.
Back on this topic, is there ever a debate as to whether legal fees includes lawyers/attorneys?
Also, let’s say you have to go with some version of attorneys’ fees. Why not use attorney fees instead of attorney’s fees or attorneys’ fees? It’s not like you see court’s costs or courts’ costs? For example, what if you had costs incurred with claims in multiple jurisdictions or in state and bankruptcy courts? The term “court costs” appears to refer to a category of costs and there is no need to fiddle with the number of courts possessing the costs. I would think the use of “attorney fees” would be preferred as a reference to the category or type of fee and there wouldn’t be a need to talk about how many attorneys possess the fees.
The point about legal fees is that it’s broader, not narrower: I haven’t encountered any discussion about how it excludes lawyer fees.
One attraction to legal fees is that you don’t have to get into the whole apostrophe thing :-)
Let’s say someone argues the term “legal” is a proxy for legal system like court costs or arbitration fees, but it doesn’t include attorney fees because drafters would call out “attorney fees” if they meant to include them. If you had to choose between attorney fees, attorneys’ fees, and attorney’s fees, which would you pick?
What makes sense is lawyer fees: arguing that it means only one lawyer is like saying car expenses can involve only one car. But I’m not in the business of winning fights, so I’d say fees for lawyers.
But I don’t think your concern is enough to get me away from legal fees.