Attorney's Fees

"If, upon motion of the party in a civil action, it is found that the original claims were insubstantial, frivolous and not in good faith, then the court must award reasonable counsel fees and other costs to the party against which those claims were made. M.G.L. c. 231, § 6F.

In a civil action in the supreme judicial court, appeals court or in the superior court, a party may recover $2.50 of attroney's fees if an issue in law or fact is joined or $1.25 if not. M.G.L. c. 261, § 23."

"One question that needs to be determined is whether attorney's fees were actually incurred, such that the party is entitled to recover them pursuant to a contract provision. The Massachusetts courts have determined that ""incurred"" means ""personally obligated to pay."" Lincoln St. Realty Co. v. Green, 374 Mass. 630, 632 (1978). Attorney's fees are incurred when a party becomes liable to pay the fees. Northern Associates, Inc. v. Kiley, 57 Mass.App.Ct. 874, 877 (2003). This obligation to pay fees is evidenced by the attorney ""specifying the nature of the services, the time expended and the hourly rate, [and] establishes that services of private legal counsel had been engaged and provided …"" Id. Whether the party actually pays the fee is not a determining factor. Id. at 878. The judge has ""wide discretion"" in the amount of the fees being awarded. Id. at 882. The things a judge will consider in the determination of the award are ""the ability and reputation of the attorney, the demand for his services by others, the amount and importance of the matter involved, the time spent, the prices usually charged for similar services by other attorneys in the same neighborhood, the amount of money or the value of the property affected by the controversy, and the results secured."" Cummings v. National Shawmut Bank of Boston, 284 Mass. 563, 569 (1934)."