Virginia Lawyers Weekly

The Virginia Supreme Court’s advisory committee on rules of court is proposing a rule that would require attorneys to ask for attorneys’ fees in their initial pleadings or risk waiving the possibility of getting them.

The committee is asking that comments on the proposed Rule 3:25 be sent to by Nov. 24 to Steven Dalle Mura, Office of the Executive Secretary, Supreme Court of Virginia, 100 N. Ninth St., Richmond, VA 23219.

The committee’s report notes that the Boyd-Graves Conference and other bar leadership organizations have recommended over the last three years the adoption of a rule detailing how attorneys’ fee claims should be handled.

The recommendation is in part an effort to give attorneys fair warning of the effect of a 2005 Supreme Court case, Lee v. Mulford (VLW 005-6-043) if they wait until after a ruling has been made on the merits of a case to seek the fees.

“The Advisory Committee concluded that instances of inadvertent waiver could be reduced and that justice would be better served if the parties address the issues surrounding the litigation of an attorneys’ fee claim earlier in the litigation,” according to its report.

The rule would not apply to requests for fees in domestic relations cases or under Virginia Code § 8.01.271.1 but requires parties in other civil cases to include a demand for attorneys’ fees in the complaint, counterclaim or cross-claim. “The demand must identify the basis upon which the party relies in requesting attorney’s fees,” according to the proposed rule.

Failure to do so will result in waiver of a claim for attorney’s fees “unless leave to file an amended pleading seeking attorney’s fees is granted under Rule 1:8,” according to the proposal.

Here is the text of the proposed rule:

Rule 3:25. Claims For Attorney’s Fees

A. Scope of Rule. This rule applies to claims for attorney’s fees, excluding (i) attorney’s fees under § 8.01-271.1 of the Code of Virginia, and (ii) attorney’s fees in domestic relations cases.

B. Demand. A party seeking to recover attorney’s fees shall include a demand therefor in the complaint filed pursuant to Rule 3:2, in a counterclaim filed pursuant to Rule 3:9, in a cross-claim filed pursuant to Rule 3:10, or in a responsive pleading filed pursuant to Rule 3:8. The demand must identify the basis upon which the party relies in requesting attorney’s fees.

C. Waiver. The failure of a party to file a demand as required by this rule constitutes a waiver by the party of the claim for attorney’s fees, unless leave to file an amended pleading seeking attorney’s fees is granted under Rule 1:8.

D. Procedure. Upon the motion of any party, the court shall, or upon its own motion, the court may, in advance of trial, establish a procedure to adjudicate any claim for attorney’s fees.

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