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Court Decides if Former Counsel is Entitled to Legal Fees


A New York Probate Lawyer said that, in this estate, there are two separate proceedings to fix legal fees. In the first, the executor, the decedent’s nephew, petitions to fix and determine the reasonable legal fee and disbursements to be awarded to his former counsel, at an amount less than the $14,200 in legal fees and $1,415.37 in disbursements billed and sought by the said counsel. The counsel cross petition for an order fixing his fees and disbursements in the billed amount. The second proceeding pursuant to SCPA 2110, commenced by him, seeks an award of $9,590, including $340 in disbursements, for legal services rendered to a former client, the decedent’s daughter-in-law. The latter opposes the petition and cross-petitions to fix and determine his reasonable attorney’s fees and disbursements contending, inter alia, that the legal fees, to the extent valid, should be borne by the estate. The parties agreed to submit the issues in each proceeding on the papers, without a hearing.

A New York Will Lawyer said that, the decedent died on August 4, 2006. Letters testamentary issued on October 30, 2006. The decedent’s daughter-in-law and the decedent’s two grandchildren, the decedent’s only distributees, each receive one-third of the residuary estate. The share of each grandchild is to be held in trust until that grandchild reaches the age of 30 years. Although the counsel’s representation of the executor in connection with this estate commenced on or about August 11, 2006 upon the filing of the petition for letters testamentary, the executor did not execute a retainer agreement, setting an hourly rate of $250, until January 14, 2007. The probate petition indicated that the estate consisted of personal property valued at $137,000 and certain Bronx realty valued at $500,000. Thereafter, the executor filed an affidavit increasing the value of the personal property to $154,360.56 and the realty to $569,000.
A Bronx Estate Administration Lawyer said that, the counsel’s legal bills reveal that as of the date of the filing of the probate petition, he was in possession of a deed of the Bronx realty which was executed by the decedent on May 21, 2000, over six years prior to her death. The deed conveyed the realty to the decedent’s daughter-in-law while reserving to the decedent a life estate. Upon learning of the decedent’s death, the attorney who prepared and oversaw the execution of the deed provided it to him, who included the value of the realty in the probate petition. Following the admission of the will to probate, the executor and the counsel began collecting assets; in particular, they sought a date of death appraisal of the Bronx realty and personal property contained therein, and contacted brokers in order to sell the realty. The counsel’s bill reflects his involvement in meetings at the Bronx realty with the executor and appraisers, in obtaining brokers and receiving proposals from interested buyers and in drafting contracts of sale, although no closing ever occurred. During this time, it appears that disputes arose between the executor and the decedent’s daughter-in-law or her children concerning the sale of certain personal property, and the sales price of the Bronx realty. In addition, when the decedent’s granddaughter reached the age of 30, she requested through her mother a $10,000 distribution and, in response, the executor sent $6,000 instead of the $10,000 requested. These events prompted a January 3, 2008 letter from the counsel to the executor stating, inter alia, that he concurred with her recent rejection of an offer on the Bronx realty, and the executor should issue a check in the requested amount to the granddaughter and provide him and her with an accounting and cancelled checks for all expenses.

Westchester County Probate Lawyers said that, the executor commenced an SCPA 2103 turnover proceeding seeking all estate documents in the counsel’s possession. Upon the cessation of his representation of the executor, he began representing the decedent’s, who signed a retainer agreement in April, 2008. On May 21, 2008, while represented by the counsel, she commenced an SCPA 711 proceeding seeking an order removing the executor and directing the turnover of all estate documents in his possession. In the said proceeding, the executor successfully moved to disqualify him as her counsel based on a conflict of interest. Thereafter, the executor withdrew his SCPA 2103 proceeding and all parties stipulated to discontinue the SCPA 711 proceeding commenced by her, she commenced an SCPA 2103 proceeding seeking a decree directing the counsel to turn over the deed dated May 21, 2000 to her new counsel. A decision dated April 1, 2009 reflects that this court ruled from the bench that he should turn over that deed to her, and the executor was restrained from distributing $25,000 of estate assets until Brady’s claims for legal fees were fixed. The executor executed a Real Property Transfer report, reflecting a transfer and sale of the Bronx realty, as of May 21, 2000, to Lauren Harris.

A Suffolk County Probate Lawyers said that, the proceeding by the executor and cross petition by the counsel seeking to fix his fees and disbursements in connection with his representation of the executor ensued. In addition, he commenced the separate proceeding to fix the legal fees and disbursements owed to him by the decedent’s daughter-in-law.

The issue in this case is whether former counsel is entitled to his legal fees.

It is well settled that a client has an absolute right to discharge an attorney at any time”, with or without cause. If the discharge is with cause, the attorney has no right to compensation or to a retaining lien, notwithstanding a specific retainer agreement; however, if the discharge is without cause before the completion of services, then the amount of the attorney’s compensation must be determined on a quantum meruit basis.
The Surrogate’s Court has broad discretion to determine what constitutes a reasonable attorney’s fee after consideration of various factors including the time and money involved, the degree of difficulty of the matter in which services were rendered, the extent of the attorney’s experience and the results obtained. Services which are wholly executorial in nature, that is, those capable of being performed by a layperson, are not recoverable from the estate.
Here, there is no evidence that the counsel was terminated by the executor for cause and, therefore, he is entitled to be compensated on a quantum meruit basis for his services rendered to the executor. Nonetheless, the executor claims that the estate was damaged when he included the realty as an asset of the estate and assumed the representation of the decedent’s daughter-in-law, and that those actions resulted in damages consisting of an increased filing fee and legal fees stemming from the motion to disqualify Brady or other inappropriate billing.
At the time of the filing of the probate petition, it appears that the counsel, in good faith, believed that the real estate should be included as an asset of the estate. While the parties continue to debate the legal merits of that position, the record clearly indicates that the executor and the distributees acquiesced in this course of action up to the time that the executor consulted and retained new counsel and terminated his services. As a result, the difference in the filing fee incurred by the estate as a result of the inclusion of the realty will not be deducted from his legal fees, and he is entitled to reasonable compensation for time he spent drafting contracts for the sale of the realty.
Nonetheless, once the executor terminated his representation while simultaneously indicating he no longer wished to follow his advice with respect to the realty and other matters, he could not, in good faith, independently pursue a course of action contrary to that desired by his former client and, in the process, place himself in a conflict of interest with that former client, the executor. As a result, all legal fees incurred in connection with the motion to disqualify Brady based on that conflict of interest and breach of fiduciary duty are deducted from the reasonable compensation payable to him.
His submissions indicate that he billed for services that are executorial in nature and could be performed by a layperson. His time breakdown reveals legal fees charged for, inter alia, going online to obtain a form and faxing a form, conversing with appraisers, traveling time to personally deliver documents, going to the realty and taking photographs, discussions with brokers and realtors generally and not in relation to offers to purchase, conversing with clients for unidentified reasons, and discussions concerning the sale of the personal property at the realty. Such acts and functions cannot be charged to the estate as legal fees. Furthermore, he spent more time than necessary on some issues because he failed to recognize that he represented the executor of the estate, and not the estate itself or the beneficiaries of the estate.
Accordingly, based upon a consideration of all of the relevant factors, including the retainer hourly rate, the executor’s petition and the cross petition by the counsel are granted only to the extent that after deducting the legal fees incurred in the application to disqualify him, the court fixes the legal fee to be paid to him in the amount of $8,000, and fixes disbursements of $1,415.37 and, otherwise, the applications are denied. As he has no interest in this estate, his request for an order directing the executor to account is denied.
In his SCPA 2110 petition and supporting papers seeking a legal fee for services performed, the counsel’s asserts that he is entitled to all fees and disbursements requested because, solely as a result of his prior efforts to revoke the letters testamentary that issued to the executor, his former client, and to substitute the decedent’s daughter-in-law as administratrix c.t.a., those parties quickly “made a deal among themselves” and settled all proceedings pending at that time. In support, he notes that the parties withdrew a prior SCPA 2103 turnover proceeding by the executor against him, discontinued her prior SCPA 711 proceeding to remove the executor, without costs to either party, and decided not to pursue his and her prior demands for an accounting by the executor.
Notwithstanding that her retainer agreement with the said counsel is dated April, 2008, his bill for legal services to her encompass the period from February 5, 2008 through August 29, 2008. Those legal services are billed at a rate of $250 per hour and total $9,250. Disbursements total $340, consisting of a filing fee for the petition to revoke the letters testamentary that issued to the executor ($75), and the service of three citations in connection with that petition ($265).
Here, he should have known there was a conflict of interest in his representation of the decedent’s daughter-in-law in a proceeding seeking to remove the executor, his former client. The disqualification of the said counsel as attorney due to his contravention of the duty of loyalty to his former client, the executor, is tantamount to a discharge for cause. As the serious misconduct and conflict of interest relate to the representation at issue, he forfeited his right to seek any legal fee from her. Nonetheless, he may recoup from her the disbursements of $340 that he expended during the course of that representation.
Accordingly, the court held that the counsel’s SCPA 2110 petition against the decedent’s daughter-in-law and her cross petition are granted only to the extent of awarding him $340 in disbursements and, otherwise, are denied.
If you are having problems with the legal fees of your counsel in a probate proceeding, seek the assistance of a Bronx Estate Litigation Attorney and Bronx Estate Administration Attorney at Stephen Bilkis and Associates.

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