Written Fee Agreement Is Not Required For Ordinary Probate Work

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In Estate of Wong, 2012 DJDAR 8873 (2012), the California Court of Appeal for the First Appellate District decided an interesting attorney fee case dealing with the interplay of the Probate Code and Business and Professions (“B&P”) Code Section 6148. B&P Code Section 6148 requires a written fee agreement between the lawyer and the client where the services will likely exceed $1,000.

The client retained counsel to assist with a trust assignment and some probate work. The attorney did not provide the client with a written retainer agreement. Subsequently, the client terminated the lawyer’s employment and retained other counsel. After significant efforts by the prior and successor counsel, the client submitted a petition for settlement of the estate. The lawyers claimed entitlement to statutory compensation in the sum of $96,478. However, due to the lack of a written retainer agreement under the B&P Code, the client claimed the lawyers had waived their right to fees and should receive nothing.

The first lawyer (who had been discharged) petitioned for fees, dividing his work between the statutory probate work and for additional services. The probate court found that the lawyer was entitled to $72,358 in statutory fees. The client objected and filed an appeal.

The court of appeal affirmed the award of fees, noting that under Probate Code Section 10810, an attorney’s compensation for ordinary services is based on the value of the estate. The client argued that the lawyer was not entitled to statutory compensation under Section 10810 because no written agreement for services existed as required by B&P Code Section 6148. The court concluded, however, that because the fees for services rendered to a personal representative is paid out of the estate, rather than by the client, it is impossible that the “total expenses” charged to the client will exceed $1,000. For that reason, the court of appeal concluded that Business and Professions Code Section 6148 was not applicable.