Rule 4:42-9.Attorney’s Fees

Last amended September 1, 2010 · Current through June 18, 2026 · Last verified July 7, 2026

In one sentenceRule 4:42-9 bars an award of attorney's fees as part of taxed costs except in specific categories -- family actions, funds in court, probate and guardianship matters, mortgage and tax-certificate foreclosures, insurance-policy actions, and other rule- or statute-based exceptions -- and requires a supporting affidavit of services.

Full Text of Rule 4:42-9

Text sizeJump to: (a) (b) (c) (d)

(a) Actions in Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed costs or otherwise, except

(1) In a family action, a fee allowance both pendente lite and on final determination may be made pursuant to R. 5:3-5(c).

(2) Out of a fund in court. The court in its discretion may make an allowance out of such a fund, but no allowance shall be made as to issues triable of right by a jury. A fiduciary may make payments on account of fees for legal services rendered out of a fund entrusted to the fiduciary for administration, subject to approval and allowance or to disallowance by the court upon settlement of the account.

(3) In a probate action, if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate. In a guardianship action, the court may allow a fee in accordance with R. 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem.

(4) In an action for the foreclosure of a mortgage, the allowance shall be calculated as follows: on all sums adjudged to be paid the plaintiff amounting to $5,000 or less, at the rate of 3.5%, provided, however, that in any action a minimum fee of $75 shall be allowed; upon the excess over $5,000 and up to $10,000 at the rate of 1.5%; and upon the excess over $10,000 at the rate of 1%, provided that the allowance shall not exceed $7,500. If, however, application of the formula prescribed by this rule results in a sum in excess of $7,500, the court may award an additional fee not greater than the amount of such excess on application supported by affidavit of services. In no case shall the fee allowance exceed the limitations of this rule.

(5) In an action to foreclose a tax certificate or certificates, the court may award attorney’s fees not exceeding $500 per tax sale certificate in any in rem or in personam proceeding except for special cause shown by affidavit. If the plaintiff is other than a municipality no attorney’s fees shall be allowed unless prior to the filing of the complaint the plaintiff shall have given not more than 120 nor fewer than 30 days’ written notice to all parties entitled to redeem whose interests appear of record at the time of the tax sale, by registered or certified mail with postage prepaid thereon addressed to their last known addresses, of intention to file such complaint. The notice shall also contain the amount due on the tax lien as of the day of the notice. A copy of the notice shall be filed in the office of the municipal tax collector.

(6) In an action upon a liability or indemnity policy of insurance, in favor of a successful claimant.

(7) As expressly provided by these rules with respect to any action, whether or not there is a fund in court.

(8) In all cases where attorney’s fees are permitted by statute.

(b) Affidavit of Service. Except in tax and mortgage foreclosure actions, all applications for the allowance of fees shall be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a). The affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought. If the court is requested to consider the rendition of paraprofessional services in making a fee allowance, the affidavit shall include a detailed statement of the time spent and services rendered by paraprofessionals, a summary of the paraprofessionals’ qualifications, and the attorney’s billing rate for paraprofessional services to clients generally. No portion of any fee allowance claimed for attorneys’ services shall duplicate in any way the fees claimed by the attorney for paraprofessional services rendered to the client. For purposes of this rule, “paraprofessional services” shall mean those services rendered by individuals who are qualified through education, work experience or training who perform specifically delegated tasks which are legal in nature under the direction and supervision of attorneys and which tasks an attorney would otherwise be obliged to perform.

(c) Statement of Fees Received. All applications for the allowance of fees shall state how much had been paid to the attorney (including, in a matrimonial action, the amount, if any, received by the attorney from pendente lite allowances) and what provision, if any, has been made for the payment of fees to the attorney in the future.

(d) Prohibiting Separate Orders for Allowances of Fees. An allowance of fees made on the determination of a matter shall be included in the judgment or order stating the determination.

End

Amendment History

New Jersey publishes each rule’s amendment record in a “History” note beneath the rule. It is reproduced verbatim below; the “R.R.” citations refer to the former Revised Rules numbering the current rules replaced.

Source - R.R. 4:55-7(a) (b) (c) (d) (e) (f), 4:55-8, 4:98-4(c). Paragraphs (a) and (b) amended July 7, 1971 to be effective September 13, 1971; paragraph (a); amended November 27, 1974 to be effective April 1, 1975; paragraph (a); amended July 16, 1981 to be effective September 14, 1981; paragraph (a)(1); amended December 20, 1983 to be effective December 31, 1983; paragraphs (a)(1) and (b); amended November 1, 1985 to be effective January 2, 1986; paragraph (b); amended January 19, 1989 to be effective February 1, 1989; paragraph (a)(4); amended June 29, 1990 to be effective September 4, 1990; paragraph (a)(5); amended July 14, 1992 to be effective September 1, 1992; paragraphs (a)(1), (2) and (c); amended July 13, 1994 to be effective September 1, 1994; paragraph (a)(5); amended June 28, 1996 to be effective September 1, 1996; paragraph (a)(1); amended January 21, 1999 to be effective April 5, 1999; paragraph (a)(5); amended July 28, 2004 to be effective September 1, 2004; paragraph (a)(3); amended July 27, 2006 to be effective September 1, 2006; caption; amended and subparagraphs (a)(5) and (a)(8); amended July 23, 2010 to be effective September 1, 2010.

Plain-English Summary

New Jersey's default is that each side pays its own lawyer. Rule 4:42-9 confirms that baseline, then carves out a specific list of exceptions where a fee award is allowed: family actions, funds held in court, probate and guardianship proceedings, mortgage and tax-certificate foreclosures (with fees calculated on a set formula or capped amount), insurance-policy claims, situations these rules expressly authorize, and anywhere a statute permits fees.

Any fee application, outside tax and mortgage foreclosures, needs an affidavit of services addressing the standard fee factors, a statement of what the attorney has already been paid. The fee allowance itself goes into the judgment or order deciding the matter — a fee award cannot be tucked into an unrelated order.

Frequently Asked Questions

Does the losing party in a New Jersey lawsuit usually pay the winner's attorney's fees?

No. Attorney's fees are not allowed as part of taxed costs except in a specific list of situations the rule identifies, such as family actions, funds in court, probate and guardianship matters, certain foreclosures, and insurance-policy claims, or wherever a statute permits fees.

What is the fee cap for a mortgage foreclosure under this rule?

A formula based on the amount recovered — 3.5% on the first $5,000 (minimum $75), 1.5% on the next $5,000, and 1% above $10,000, generally capped at $7,500 absent an application supported by affidavit for a higher amount.

What must support a request for attorney's fees?

An affidavit of services addressing the recognized fee factors, except in tax and mortgage foreclosure actions, along with a statement of what has already been paid to the attorney.

Source & verification. The rule text and amendment history are reproduced verbatim from the official New Jersey Rules of Court (N.J. Ct. R. 4:42-9). Prescribed by the Supreme Court of New Jersey (N.J. Const. art. VI, § 2, ¶ 3). The plain-English summary is original and written by us. Last verified July 7, 2026. · Official source

Also known as: attorney fee awardfee shifting exceptionsrecovering attorney's feesAmerican Rule New Jerseywhen can you get attorney's feesprevailing party fees