January 16, 2015
In state and federal court pleadings, many attorneys ask for attorneys’ fees in claims for relief as a matter of course even if there is no clearly defined right to recover such fees. They do so to avoid waiving the potential to recover attorneys’ fees if a basis for recovery is later discovered. However, the American Arbitration Association’s (“AAA”) Commercial Arbitration Rule 43(d)(ii) provides: “The award of the arbitrator may include: … (ii) an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.”(Emphasis added.)

Thus, by including boilerplate language requesting an award of attorneys’ fees in an AAA arbitration demand or response conducted under the AAA Commercial or Construction Rules, a lawyer may be creating a right to recover attorneys’ fees, rather than preserving such a right. Once consent is mutually given, it is within the arbitrator’s discretion whether to allow a party to withdraw consent.

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