Are Alternative Fee Arrangements the Future of Attorney’s Fees Arrangements in Orphans’ Court Litigation?

by McNees Wallace & Nurick LLC

The 2016 amendments to the Pennsylvania Supreme Court Orphan’s Court Rules brought a slight shift in Orphan’s Court litigation. Aiming to provide a uniform standard of practice, the new Rules closely align with the Pennsylvania Rules of Civil Procedure. Whether you choose to identify the Rule amendments as a positive or negative standardization, it is worth noting that with any change comes opportunity.

One can presume that the Rule changes would bring an influx in contested matters and fee disputes. As more fee disputes arise, practitioners are left questioning what can be done to make the accumulation of fees more transparent and cost-effective. To begin this discussion, we are opening the door for conversation surrounding alternative fee arrangements; are they a move in the right direction for fiduciary litigation matters or are they a hindrance to fully and fairly litigating a matter?

The practice of law continues to evolve with more practice areas getting away from the billable hour. Tracking time in increments, especially in fiduciary litigation, adds up quickly. With various parties involved in Orphans’ Court matters (including fiduciaries, beneficiaries, and the judicial system) legal reserves can exceed budgets early in the matter, often due to factors outside the control of the fiduciary and its counsel. This leads to the inescapable client discussion concerning legal fees or the tried and true “no holds barred” litigation: doing what it takes, without reservation, to defend the fiduciary in court. One thing most of us can agree upon is that these conversations are not easy.

According to a recent Altman Weil ¹ survey, 73.8% of law firms reported that their use of alternative fee arrangements was primarily reactive in response to client requests. Perhaps a step in the right direction is to move closer to a budget that reflects various segments of the litigation versus the litigation as a whole? Creating alternative fee arrangements with the client’s stated goal(s) in mind ensures appropriate budgets based on the value of services rendered. More often than not, the thought of adopting an alternative fee arrangement comes to mind when legal fees have accumulated beyond the stated budget and without a clear path to resolution; perhaps this is too late. Having this discussion up front can help to preserve assets and the economy of time, while ensuring transparency with all parties involved. It is rare when counsel or corporate fiduciaries are able to predict the various twists and turns a contested matter may take. Budgeting at various junctures in the litigation allows both the fiduciary and its counsel to re-assess and plan for what lies ahead.

While clients and their counsel may strike alternative fee arrangements, courts are not bound to accept them. When evaluating the reasonableness of a fee in the fiduciary setting, courts apply certain factors and are accustomed to evaluating hourly rate and time spent. Indeed, the first thing the Office of Attorney General will seek is time records. Acceptance of alternative fee arrangements will necessarily involve the ultimate approval of our courts. It will be important to preserve and communicate the factors leading to an alternative fee arrangement.

As millennials now make up the largest generation in the United States workforce,² it is time to think about the shift the practice of law is taking, especially in the billable hour category. Approximately 92.9% of law firms are using non-hourly based billing.³ Notwithstanding, that number remains rivaled in the fiduciary litigation context. It seems forward-thinking practitioners are onto something with alternative fee arrangements. To avoid being last on the innovator train, it is time we begin thinking about how alternative fee arrangements may help to achieve stated goals while remaining transparent and preserving the maximum amount of trust assets.

McNees is experienced at implementing alternative fee arrangements and has professional staff, including a Legal Project Manager, engaged to work with clients on such matters. Should you wish to engage in conversation or offer any comments or thoughts concerning alternative fee arrangements in the fiduciary litigation context, please feel free to contact Kiandra Bair at

[1] Altman Weil, Law Firms in Transition: An Altman Weil Flash Survey, 2017, p. 68 (

[2] Bureau of Labor Statistics: Labor Force Statistics from the Current Population Survey (; see also Pew Research Center, Millennials Surpass Gen Xers as the Largest Generation in U.S. Labor Force (

[3] Id. Altman Weil, Law Firms in Transition: An Altman Weil Flash Survey, 2017, p. 67.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© McNees Wallace & Nurick LLC | Attorney Advertising

Written by:

McNees Wallace & Nurick LLC

McNees Wallace & Nurick LLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.