Lincoln St. Realty Co. v. Green

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS
• Citation: Lincoln St. Realty Co. v. Green, 374 Mass. 630, 373 N.E.2d 1172 (Mass. 1978)
• Decision Date: 14 March 1978

Page 1172

373 N.E.2d 1172

374 Mass. 630

LINCOLN STREET REALTY COMPANY v. Elizabeth A. GREEN.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 6, 1978.

Decided March 14, 1978.

J. Paterson Rae, Worcester, for defendant.

Robert J. Arakelian, for plaintiff.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

ABRAMS, Justice.

The plaintiff Lincoln Street Realty Company (Lincoln Street) brought an action of summary process against the defendant Elizabeth A. Green (Green) to evict her for a violation of her lease. After a jury trial, a verdict was returned in favor of the defendant.

The lease between the parties contained the following clause: "If the court action rules against RESIDENT, then he shall pay to MANAGER any costs, sheriff fees or any other fees involved, including reasonable attorney's fees; if court action rules against MANAGER, then he shall pay to RESIDENT any costs, sheriff fees or any other fees involved, including reasonable attorney's fees, incurred by the RESIDENT in any such process." Pursuant to this provision, Green filed a motion to assess attorney's fees against Lincoln Street. This motion was granted. Subsequently, Lincoln Street filed a motion to reconsider the award of attorney's fees. On reconsideration, the judge revoked and rescinded the allowance of attorney's fees. Green appeals from the order denying attorney's fees.

Green's attorney is employed by Central Massachusetts Legal Services, Inc., a publicly funded legal service organization which represents indigent clients who are unable to afford attorney's fees and which does not bill clients for its services. In general, a prevailing party may not recover attorney's fees in the absence of statutory authorization or a contractual provision. ¹ See Bournewood Hosp., Inc. v. Massachusetts Comm'n Against Discrimination, --- Mass. ---, --- - ---, ^a 358 N.E.2d 235 (1976); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The issue presented for review is therefore whether a person represented by an attorney who does not charge his clients may recover attorney's fees under a contractual clause which provides that the prevailing party shall recover reasonable attorney's fees incurred.

Green argues that since publicly funded legal service organizations are generally recognized as appropriate recipients of fee awards, attorney's fees should be awarded under the lease in the present case. However, none of the cases on which the defendant relies for the proposition that fee awards to legal service organizations are proper involved a contractual provision allowing the prevailing party to recover attorney's fees. While we agree that when attorney's fees are statutorily authorized legal service organizations are entitled to receive such awards, see Lund v. Affleck, 442 F.Supp. 1109 (D.R.I.1977), we conclude that, because of the different policy considerations involved, legal service organizations are not appropriate recipients of fee awards made pursuant to a contractual provision allowing recovery of attorney's fees incurred.

Statutory authorization to award attorney's fees to the prevailing party in certain types of actions primarily serves the interrelated purposes of encouraging private enforcement of particular laws chosen by the Legislature, deterring illegal conduct in connection with these laws, and punishing those who violate these laws. See Note, Awards of Attorney's Fees to Legal Aid Offices, 87 Harv.L.Rev. 411, 412-421 (1973). Since these same public policies are served by an award of attorney's fees to a legal service organization, such an organization is a proper recipient of a fee award authorized by a statute. ² See Lund v. Affleck, supra ; Note, Awards of Attorney's Fees to Legal Aid Offices, 87 Harv.L.Rev. 411, 412-421 (1973).

However, these public policy considerations are absent when an award of fees is sought pursuant to a contractual provision authorizing the recovery of "attorney's fees incurred " (...