In today's opinion about fees, both the majority and the dissent seemed to be looking the wrong way in wrestling with the argument about when are fees are "incurred" for purposes of Va. Code 8.01-271.1. The majority relies in part on the fact that "[h]ere, the lawyers were not working for free." The dissent concludes that fees not paid for are not fee incurred.
But many times there are litigants who would not have a lawyer unless the lawyer would take the case for free, or with the expectation of statutory fees.
In one of my cases, the appellant argued that the appellee was not entitled to fees because the appellee was being represented pro bono. The panel of the Court of Appeals cited the Supreme Court's decision in Blanchard v. Bergeron, 489 U.S. 87 (1989), in concluding that "where there are lawyers or organizations that will take a plaintiff's case without compensation, that fact does not bar the award of a reasonable fee."
Similarly, a panel of the Court of Appeals held in Bahta v. Mohammed that legal aid attorneys were entitled to fees under Va. Code 16.1-278.19.
Fee-shifting statutes put the burden of litigation costs on the bad actors who have misused the courts, which is most important when the victim is unable to pay counsel. Sanctions deter litigation misconduct. Today's decision could be a blow against poor women in particular if it means that they cannot recover fees under other statutes such as Va. Code 16.1-278.19 unless they are actually paying their attorneys at market rates.
In almost all fee litigation, the Court determines a reasonable fee, not the actual fee. Fees incurred should be interpreted to mean the reasonable fee for the attorney work that was reasonably necessary for that part of the case, whether the actual fees paid were $0 per hour or $1,000 per hour.