I. Introduction

In many under-resourced legal systems—often in so-called developing countries—justice is slow, fragmented, and often undermined by informal practices. One curious yet widespread procedural custom involves the refusal of courts to award attorneys’ fees for the litigation required to determine the amount of attorneys’ fees in a previous case.

To simplify: Imagine a lawyer wins a lawsuit (Case A) and then initiates a new proceeding (Case B) to contest the fee amount. Even if the lawyer wins Case B, courts frequently refuse to award fees for the work done in Case B, arguing that one cannot “get fees for getting fees.” This doctrine has no real statutory basis and is seldom justified in depth. It is simply treated as settled custom.

This article argues that such practice is neither principled nor efficient—it violates fundamental norms of fairness, disincentivizes legal accountability, and, ironically, makes justice cheaper by making lawyers poorer.

II. The Fallacy of “No Fees on Fees”

The core judicial rationale in many jurisdictions can be reduced to the idea that Case B—a dispute over the proper fee—is not an independent legal controversy but a procedural side-effect of Case A. Therefore, it generates no entitlement to further fees.

This logic fails in two key ways:

• It erases actual legal work: If the lawyer had to file pleadings, respond to opposition, attend hearings, and perhaps appeal a ruling in Case B, then real legal labor occurred. Why should that go uncompensated?

• It violates fairness norms: If a lawyer must go to court to enforce or adjust their own remuneration, the legal system cannot ask them to perform that work for free—especially when the court requires a full procedural process to be followed.

III. Comparative Systems: What Common Law Says

🇺🇸 United States: The “Fees on Fees” Doctrine

U.S. federal courts, especially under statutes like Title VII of the Civil Rights Act, do allow recovery for time spent securing attorneys’ fees, recognizing that otherwise, clients and lawyers would be penalized for seeking to vindicate fee rights.

“Time spent in establishing the entitlement to and amount of the fee is compensable.” — Commissioner, INS v. Jean, 496 U.S. 154 (1990) Link to case

🇬🇧 United Kingdom: Costs Are Costs, Including Fee Hearings

While the English legal system relies heavily on the “costs follow the event” rule, fees incurred in proceedings to determine or challenge costs are themselves recoverable, unless unreasonable.

“The costs of the costs dispute are, in principle, part of the litigation process and not excluded from the general rule.” — Cook on Costs (2022), para 37.23

IV. Political and Structural Implications

1. Justice Is Being “Subsidized” by Those Who Deliver It

When courts refuse to award fees for fee-related litigation, they shift the cost of the legal system’s own procedures onto the shoulders of the least powerful actors—individual lawyers, especially those outside elite firms or without retainer contracts.

This creates a hidden subsidy: the legal system becomes “cheaper” not by becoming more efficient, but by offloading its costs onto underpaid professionals.

2. It Discourages the Enforcement of Fair Compensation

Ironically, a system that discourages lawyers from litigating fee disputes undermines its own accountability. If no one fights low or unfair fee rulings because doing so is unpaid, bad practices become entrenched.

3. Undermines Legal Professionalism

If a legal system signals that lawyers who fight for their pay do so at their own cost, it sends a clear message: legal labor is not worth defending. That’s a dangerous precedent for the long-term integrity of any legal profession.

V. Beyond Law: The Moral Economy of Legal Work

This issue is not just procedural—it’s political. It forces us to ask:

• Who gets to charge for their labor in the justice system?
• Why do judges get paid to decide how much lawyers should be paid, but lawyers get nothing for making their case?
• Is justice really “accessible” if those delivering it can’t afford to work?

VI. Conclusion: A False Economy

The idea that refusing to compensate legal labor “makes justice more affordable” is a false economy. The cost is real—it’s simply borne by those least equipped to carry it. And when lawyers are disincentivized from enforcing their own rights, the rule of law suffers.

A legal system cannot ask its professionals to litigate unpaid while claiming to uphold the value of legal work.

🔗 References

1. Commissioner, INS v. Jean, 496 U.S. 154 (1990) https://supreme.justia.com/cases/federal/us/496/154/

2. Cook on Costs (2022), LexisNexis Butterworths

3. Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240 (1975) https://supreme.justia.com/cases/federal/us/421/240/

4. Torres, V. (2020). “Honorarios sobre honorarios.” Revista La Ley, LL 2020-E, 1037

5. Code de procédure civile (France), art. 700 https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000006410776

6. Ontario Rules of Civil Procedure – Rule 57 (Canadian cost rules regarding legal proceedings on costs)

✉️ If this topic resonates with institutions like the Inter-American Development Bank (IDB), it may be time to open a broader conversation about how justice systems are funded—and who ends up paying when the system avoids paying its own. Contact the author at blog.villalba.is

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