Federal judge considers 'burning' legal question—does 'attorney fee' need apostrophe and 's'?
Image courtesy of Bryan A. Garner/The Redbook: A Manual on Legal Style.
U.S. Magistrate Judge Andrew M. Edison of the Southern District of Texas uses a footnote to address “one of the burning legal questions of our generation.” Is the proper term “attorney fees,” “attorneys fees,” “attorney’s fees” or “attorneys’ fees”?
The 6th U.S. Circuit Court of Appeals at Cincinnati has noted that all four forms are “used interchangeably, nay, promiscuously” in federal statutes, rules and cases, Edison says in the second footnote of his Aug. 7 opinion.
The 5th Circuit at New Orleans is of no help. That appeals court has also used all four formulations “and more” from time to time, according to Edison.
The U.S. Supreme Court’s style guide, used by the Supreme Court’s reporter of decisions, opts for the singular possessive “attorney’s fees,” even if more than one attorney is involved, Edison says, citing a 2016 edition published online. Yet the high court has used the plural form, “attorneys’ fees,” in some of its decisions.
Edison lists “Jack Metzler” as editor of the style guide. It’s true that Metzler has published the style guide, but he got his hands on the unpublished document by photocopying a 2013 version of the manual that he got from the Supreme Court library.
“The manual is updated annually but the Reporter does not make the manual public, even though I have asked nicely,” says Metzler, who currently heads the appellate division of the District of Columbia Office of Disciplinary Counsel.
He spoke with the ABA Journal in an email while stressing that he is speaking only for himself.
Metzler may have published the version that Edison cited in 2016, but it was the 2013 manual and may have changed since then, Metzler says. He prefers to use “attorney’s fees” because “it communicates the concept well enough.”
He doesn’t think that “attorneys fees” is correct, but he thinks that other variations are OK.
“I suspect it would be a matter of great debate online with impassioned arguments, but I am not convinced one way is more right than the others or that there is a consensus,” Metzler says. “The Supreme Court style guide is a powerful authority though.”
Edison also consults a guide written by Bryan A. Garner, who is the editor-in-chief of Black’s Law Dictionary and a contributor to the Journal. When the third edition of Garner’s Dictionary of Legal Usage was published in 2011, Garner said “attorney’s fees” seemed to be prevalent, but anything other than “attorneys fees” is correct.
No more. The term “attorney fees” became “predominant in actual usage in 2000,” wrote Garner in his fifth edition and 2023 publication of The Redbook: A Manual on Legal Style.
Garner recommends the simplified “attorney fees” to “obviate the apostrophe issue.” But “attorney fees,” along with the versions with an apostrophe, are all “acceptable and plentiful in modern print sources.”
The ABA Journal’s style is to use “attorney fees,” according to Sarah Mui, the Journal’s chief copy editor. The house style guide cautions, however, that the possessive is necessary in some contexts. The listed example: “The client refused to pay the attorney’s fees.”
Edison concludes that there is no one right way to reference fees. He decides to go with “attorney’s fees” when there is a request for fees by one lawyer and “attorneys’ fees” when there is a request by multiple lawyers.
Edison considers the proper form when awarding fees to two plaintiffs who successfully sued staffing and recruiting company Hamilton-Ryker IT Solutions for unpaid overtime wages. Bloomberg Law covered the fee award.
