This Rule 71.6 governs attorney fees for representing a party in other probate proceedings or contested probate cases.
A. Other Probate Proceedings
The Court does not monitor or regulate attorney fees in other probate proceedings, unless a statute or applicable rule requires the Court to do so.
B. Recovery of Fees in Contested Matters
In contested probate matters, any party seeking recovery of attorney fees from an opposing party must show by clear and convincing evidence that a specific statute, case law or applicable rule permits or requires the recovery, or that a compelling equitable justification exists for awarding recovery of attorney fees. The Court may dismiss a claim for recovery of attorney fees without a hearing if the party seeking the recovery fails to cite in its pleadings adequate legal support for the claim. Otherwise, the Court will conduct a hearing on claims for recovery of attorney fees from an opposing party.
Best Practices Local Rule 71.1
This Rule relates to attorney fee issues in all types of probate cases.
Our Court requires a written engagement and fee agreement between the attorney and client is all probate cases. Written agreements are the best way to avoid disputes with your client later. If you have a pending case at the time this Rule goes into effect and you do not have a written agreement, the Court suggests you get one in place as soon as possible.
The attorney and client are free to contract in any manner they desire, subject to the requirements in the Code of Professional Responsibility.
Do NOT file your fee agreement with the Court (unless other provisions of this Rule require you to file it) because then it becomes a public record. Also, do not submit your agreement to the Court for review and pre-approval. The Court does not do that.
If you are charging on an hourly basis, be sure your billing format contains the necessary detail required in paragraph (D) of this Rule. Also, consider sending the client an interim billing statement every month, even though payment is not due until approved by the Court. This is often a good way of keeping the client informed of your charges as the case progresses to avoid “sticker shock” at the end of the case.
Even if you are computing your fee on a percentage, flat fee or other basis, it may be wise to also to track your work internally on an hourly basis. First, that is a good practice management tool to measure whether your alternative billing method is profitable, in comparison to other work you perform on an hourly fee basis. Second, it is good to have as backup evidence to substantiate the reasonableness of your fee if a dispute arises at some point in the case.
Local Rule 71.2
Perhaps the most important section of this Rule is paragraph 71.2(B). In essence, if you complete the administration of an estate within six months (or 13 months if the administration is extended), you do not have to get the Court’s approval of your fee. You do not even have to file a fee guideline computation. Simply put the fee on the final and distributive account. As long as it appears reasonable and everyone has consented, that is all you need to do. The remainder of this Rule only applies if you do not complete the administration within six or 13 months, whichever is applicable, or if you cannot obtain everyone’s consent to your fee. There is built-in flexibility if your fee exceeds the fee guideline to reduce the instances in which a hearing on fees will be necessary. The Court’s prescribed Local Forms make it easier and more uniform to process fee applications.
Please note that fees for assistance with non-probate assets is no longer part of the fee guideline. You can charge for services relating to non-probate assets. You just do not need Court approval for those charges. Probate Court does not have jurisdiction over the administration of non-probate assets, and has no way to verify fees charged on the basis of the value of non-probate assets. Since non-probate assets are not part of the probate estate, fees relating to non-probate assets should not be included on the probate accountings.
Also note that this Rule does not have the prior compensation restrictions in cases where the attorney also serves as the Fiduciary. Fees for services in both capacities must be reasonable and approved by the Court.
Local Rule 71.3
Generally, past practice has been to charge for legal services in guardianship cases on an hourly basis. This Rule continues that practice, but leaves open the door for alternative billing methods with prior Court approval. Be certain that your billing statement contains the level of detail required in Rule 71.1(D).
If an attorney is also serving in a dual capacity as the guardian, it is absolutely crucial to properly segregate “legal” work from “guardian” work. The distinction between the two is often blurred, but you have to make a good-faith effort to segregate the work honestly. There are several recent disciplinary cases in Ohio sanctioning attorney- guardians for charging legal fee rates for purely guardian work. This is an area that deserves extra time and attention to avoid those problems.
Local Rule 71.4
Attorney fees in trust cases work the same way as in guardianships. Refer to the suggestions above for more information.
Local Rule 71.5
This Rule is fairly simple. If a fee agreement seeks contingent compensation within the percentage guidelines in Appendix B, the Court does not need to approve the agreement in advance. Just file it with the application to approve
the settlement at the end of the case. If the fee agreement exceeds the Appendix B guidelines, or if the fee is computed in a method other than a contingent percentage, you need to submit it to the Court for approval up front. If you are ever in doubt regarding the acceptability of your contingent fee agreement, the best route is to submit it to the Court for approval immediately upon commencing the case.
Local Rule 71.6
It is common practice in contested matters for one or both sides to seek recovery of attorney fees from the other side. Generally, the request is unsupported by any authority. This Court normally will not consider awarding attorney fees in a contested matter without specific statutory, case law or rule authority. If you seek recovery of attorney fees, be prepared to thoroughly and clearly substantiate your claim. The burden is on the party seeking recovery to prove the right to an award of fees.