Attorney’s Fees Directed by the Will
October 1, 2014 § Leave a comment
B.D. Benoist included a provision in his will that any beneficiary who contested his will “shall pay all attorneys fees and court costs associated with the Will contest or related action.”
The will was, indeed, unsuccessfully contested by Bronwyn Parker, B.D.’s daughter and a beneficiary, and the executor demanded award of an attorney’s fee.
Before we go any further, we’ve posted twice before here about this case. One post addressed the question as to when a temporary administrator should be appointed. The second post set out the MSSC’s new rule that there is a good faith and probable cause exception to enforceability of in terrorem clauses in wills.
As to that later point, you will recall that the MSSC reversed the chancellor’s ruling that Bronwyn was disinherited because she challenged the will. Due to the fact that she acted in good faith and with probable cause to believe her position was correct, neither she nor the executor were bound by the in terrorem clause.
But what about where a will directs, as in the language above, simply that the contestant must pay the fees and court costs, without language that the challenging beneficiary will be disinherited? Can that be enforced?
Here’s what the MSSC said:
¶28. The forfeiture provision of B.D.’s will stated that if any beneficiary instituted a will contest, that beneficiary “shall pay all attorneys fees and court costs associated with the Will contest or related action.” When the chancery court initially held that the forfeiture provision in B.D.’s will was enforceable, it also concluded that Bronwyn was required to pay attorney fees for initiating the will contest. Upon granting Bronwyn’s motion to reconsider, the chancellor held that B.D.’s will could not obligate her to pay attorney fees. The chancellor reasoned that, although the “paramount duty of the court is to ascertain the intent of the testator,” the court still may not give effect to such intent if it is “contrary to law or public policy.” The chancellor reasoned that, in requiring payment of attorney fees, the testator essentially was attempting to dictate the transfer of property that was not his and was beyond his control. The chancellor analyzed Mississippi Code Section 91-5-1,12 which governs the authority of individuals to create wills, and concluded that it did not give persons power over property which was not theirs to begin with. We agree with this conclusion. Section 91-5-1 permits the testator to dispose of and “devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have. . . .” Miss. Code Ann. § 91-5-1 (Rev. 2013). The testator is not empowered to control assets that do not belong to him or her through a will, but may control only those things “which he or she hath, or at the time of his or her death shall have. . . .” Id. This clearly does not contemplate funds of a third party over which the testator had no control during his or her life or at his or her death. Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful will contestant. Accordingly, William can prevail in his claim only if there is an alternative avenue through which an award of attorney fees is appropriate.
¶29. We review a chancellor’s determination of whether to award attorney fees under an abuse of discretion standard. Schwander v. Rubel, 221 Miss. 875, 897, 75 So. 2d 45, 54 (1954) (quoting King v. Wade, 175 Miss. 72, 166 So. 327, 330 (1936)) (emphasis added). “[W]hen there is no contractual provision or statutory authority providing for attorney’s fees, they may not be awarded as damages unless punitive damages are proper as well.” Willard v. Paracelsus Health Care Corp., 681 So. 2d 539, 544 (Miss. 1996). There is no statutory authority for a testator to require the payment of attorney fees, and Bronwyn and William were not parties to a contract which included an attorney fees provision. Bronwyn has not been subject to punitive damages, nor is she in contempt of court. The chancellor did not abuse his discretion in denying attorney fees to William. The chancellor correctly noted that Mississippi does not statutorily authorize the payment of attorney fees by an unsuccessful will contestant. All that is permissible is for the will to detail the disbursement of the testator’s property. The Legislature has not seen fit to grant testators the authority to invoke the power of the courts to compel unsuccessful contestants to pay attorney fees incurred in defending a will contest. As concluded by the chancellor, there are no means by which William can obtain attorney fees in these circumstances.
A couple of useful points in this case:
- A testator may only direct the disposition of funds over which he had control during his life. Since an award of attorney’s fees would be a disposition of a third party’s funds, that’s outside the scope of the testator’s power.
- There are only three avenues for a chancellor to award attorney’s fees: (1) where there is a contractual agreement for award of attorney’s fees; or (2) where there is a statute authorizing an award of attorney’s fees; or (3) where there is an award of punitive damages. Of course, attorney’s fees may be awarded on a finding of contempt, but there are statutes authorizing that.
I wonder whether language that authorized the executor to reduce the share of any unsuccessful or bad faith contestant (or contestants pro rata) by the amount of attorney fees and costs incurred by the estate in defending the will, with the amount to be adjudicated by the court, would get by?
Remember that Benoist does not do away with in terrorem clauses in our jurisprudence. It merely opens a line of attack that had heretofore been closed to Mississippi litigants. So can still use your legal creativity to help your clients come up with language that will help blunt or mitigate the attack.
Further on the Changing Landscape of Legal Fees
January 10, 2014 § 1 Comment
The subject of limited scope representation has been touched on here. Limited scope affects fees, but even more to the point is that the construction of legal fees is undergoing a metamorphosis in reaction to changing economics.
The following is from a 2013 ABA publication …
The Great Recession has ushered in an era of alternative fee arrangements, according to a recent article in GPSolo magazine. Every year, more clients and lawyers experiment with AFAs, and some skeptics become converts.
A recent report by Altman Weil shows that in 2009 only about 20 percent of the lawyers surveyed thought that nonhourly billing had become a permanent trend within the profession. By 2012 that number had increased to 80 percent.
The report went on to observe that AFAs were being employed by almost all firms responding to the survey. Yet a substantial number of these firms also reported lower profitability when using AFAs. This suggests that law firms and clients have not yet figured out how to turn AFAs into win-win propositions. If they do not, for financial reasons alone, it is likely that firms will embrace AFAs only if required by clients.
In this economy, at least for the short term, it appears that law firms will be forced to agree to alternative fee arrangements if clients demand those arrangements. Indeed, because of client interest, almost half of the firms surveyed by Altman Weil reported a year-to-year increase in the amount of nonhourly billing, as measured as a percentage of revenues.
As a result of the change in dynamics, law firms and clients have created numerous alternatives to the billable hour when pricing legal services. The most common are outlined below:
- Contingent fees. This “old standby” has long been an alternative for hourly billing. A contingent fee is dependent on the results obtained. This obviously requires a clear understanding of what the results are. In personal injury cases, this determination is usually easy. It is a percentage of the amount recovered for the injuries sustained by the client. In other types of cases, however, defining successful results can be problematic.
- Reverse contingent fees. A reverse contingency allows for compensation based on an avoidance of exposure to liability. Although in some cases it may be difficult to determine the amount of exposure escaped, it is not impossible. Most lawyers know how to place a value on their cases, and defense counsel relying on both personal knowledge and public reports of damage awards in their jurisdiction have become adept at assessing the likelihood of both liability and the amount of damages.
- Fixed fees and flat fees. A fixed or flat fee is the price that a firm charges no matter how many hours its lawyers spend on a matter. A fixed fee may be the total fee for the engagement or may apply to discrete components of a matter, such as fixed fees for discovery, pretrial motion and the actual trial.
- Blended rates. Blended hourly rates apply to all hours billed on a matter. The blend includes the lower rates of associates and the higher rates of partners. Unlike capped fees or fixed fees, it does not provide the client with budgeting predictability.
- Percentage fees. A popular alternative fee arrangement is the percentage fee, either constant or graduated, and based on the amount of the transaction. Some courts allow fees to be determined by the value of the estate being probated. The fees for many bond issues are likewise determined by the percentage of the amount of bonds sold.
- Combined approaches. Many alternative fee arrangements combine various approaches. Some firms create fee schedules based on a low blended hourly rate plus a contingency. Other firms base their fees on all the factors set forth in the ABA Model Rule of Professional Conduct 1.5. Alternative fee arrangements may even include an amount retrospectively set, based on the value received by the client.
GP Solo is a publication of the Solo, Small Firm and General Practice Division.
Some of these fee arrangements, such as contingent and percentage fees, have only limited applicability in chancery, due to MRPC 1.5(d)(1).
The article seems to imply that these “alternative” billing arrangements are interim, during the economic downturn, and that the old practices will be restored when prosperity is restored. I’m not so sure. Everyone likes to save money, and legal clients are not exempt from that desire. As new fee arrangements come into play, clients will become accustomed to leaner, more efficient, more economical legal practices and fees. It will be hard to return to the old ways.
Adapt and survive. Lawyers who cling to the old ways will be eclipsed by those who are willing to adopt more efficient ways of doing business. Lawyers who proudly proclaim that they don’t even know how to turn on a computer, and who rely on high-overhead staff to do work they could easily do themselves, will not be competitive in this 21st-century environment. Clients don’t want to pay the higher tariff for 19th-century-style representation when 21st-century technology affords cost-saving possibilities. Thus the pressure for what the article calls “alternate” fee arrangements, but what I would refer to as the new reality.
Thanks to attorney Marcus D. Evans for the raticle.
UPDATED CHECKLIST OF CHECKLISTS
May 27, 2011 § 5 Comments
Proving your case by proving certain factors is a fact of legal life in Mississippi. I’ve referred to it as trial by checklist. If you’re not putting on proof of the factors when they apply in your case, you are wasting your and the court’s time, as well as your client’s money, and you are committing malpractice to boot.
Many lawyers have told me that they print out these checklists and use them at trial. I encourage you to copy these checklists and use them in your trial notebooks. And while you’re at it, you’re free to copy any post for your own personal use, but not for commercial use. Lawyers have told me that they are building notebooks tabbed with various subjects and inserting copies of my posts (along with other useful material, I imagine). Good. If it improves practice and makes your (and my) job easier and more effective, I’m all for it.
Here is an updated list of links to the checklists I’ve posted:
Doing an accounting in a probate matter.
Income tax dependency exemption.
Modification of child support.
IS THIS THE SOLUTION TO PRO SE LITIGATION?
August 25, 2010 § 7 Comments
A post about proposed changes to the pro bono rules for lawyers is here. There is a thoughtful comment to that post that highlights some dimensions of the situation.
It’s no secret that pro se litigants are appearing more and more frequently in Chancery Court. Whenever I ask a self-represented litigant why he or she did not hire an attorney, cost is always the response.
In our district, it’s not uncommon for a simple, irreconcilable differences (ID) divorce to cost upward of $1,500 to $2,500, plus court costs, although I have heard of some lawyers charging as little as $250 plus costs for an ID divorce with no children.
Self-representation, however, is not limited to routine, uncomplicated matters like ID divorces involving no children, no property, no joint debts and no other problems. I see pro se litigants in all kinds of matters. I presided over a termination of parental rights case not too long ago where the father represented himself and lost. I have seen pro se litigants in an adverse possession case, contempts, paternity, and even in a partition suit where, believe it or not, both sides were pro se. I can say unequivocally that I have never seen a party who proceeded pro se in a contested case leave the courtroom in better shape legally or equitably than he or she was when they walked in.
Although most all say that they choose to proceed pro se due to the rising cost of legal fees, I find in the course of things that others simply underestimate the complexity of the issues involved and think that legal matters are little more than filling out a few sheets of paper and filing with the court. Still others are lured by the siren-song of the internet sites that push cheap fill-in-the-blank do-it-yourself legal proceedings. The common denominator among all of these is that they are looking for a cheap, one-size-fits-all, easy solution to what may be a complicated situation.
These are the people who wind up in court pro se. In many cases, those pro se parties are getting simple ID divorces using kits they purchased on-line. Some are getting pleadings prepared by “secretarial services,” in violation of state law prohibiting practice of law without a license. The simple cases with no children do not usually give rise to later litigation. Pro se litigants with children, however, are a recurring problem.
Problems with child support provisions, joint and sole custody provisions, division of property, and allocation of debts are all common problems in these do-it-yourself cases. I have one pair of parties in Clarke County that I have sent back to the drawing board four times, and, although they are my most extreme case, they are by no means the only case that I have had to treat that way. I have just about decided that, if there are children, I will require the parties either to have an attorney or I will appoint a guardian ad litem at their expense.
The self-represented parties seldom understand why they can’t simply have their papers signed, and they are invariably frustrated when I tell them that I can not advise them how to draft an acceptable child support provision, or why that waiver filed a week before the complaint won’t cut it, or why they need a property settlement agreement when they don’t have any property.
How do we make legal services more affordable, thus reducing the pool of pro se litigants? Some claim that “limited scope representation,” also known as “unbundling” is the answer to lower legal fees. In essence, it is a representation arrangement in which the respnsibility of the lawyer is limited and the fee is resultingly lower. The attorney may, for instance, agree only to advise one of the parties about the language of the property settlement and child support agreement, or simply to prepare pleadings. The clients buy only as much legal service as they feel they need.
The Supreme Court’s Commission on Access to Justice proposed an amendment to Rule 1.2 of the Rules of Professional Conduct to allow for limited-scope representation. They met on Monday, August 23, and since the comment period has expired, I assume they will pass the rule on to the Supreme Court for adoption. I am all for it.
Although the proposed rule approves and encourages the practice, it does not address how a representation agreement would read so as to cover all of the ethical concerns that might arise. There is information available online, however, that may provide a starting point for lawyers. The LAWYERS USA website offers some information. The ABA has some info. The Civil Justice Network also has some info. A paper presenting the pros and cons of the practice is here.
Whether limited scope representation is the answer to the growing numbers of pro se litigants, I have no way of knowing. I do believe that it has the potential to help dramatically because it will decrease the amount of time judges will need to devote to scrutinizing pro se litigants’ pleadings and paperwork.
One caveat: I will not approve a limited-scope representation arrangement in any probate matter. Rule 6.1 of the Uniform Chancery Court Rules requires that every fiduciary retain an attorney, and you will be expected to continue in your role as counsel once you are in until you find substitute counsel. I will not allow the operation of the new rule (if it is enacted) to create an end-run around Rule 6.1.
An approach to the pro se phenomenon that I can not endorse is continued encouragement of laypeople to tackle more of their own legal matters. I saw a bar-produced video of smiling legal professionals encouraging people to handle their own “routine” legal matters, and making it sound as easy as folding a paper airplane. I don’t understand this approach. The American Medical Association does not promote do-it-yourself tonsillectomies, but then medical ethics includes the fundamental proscription, “Do no harm.” To me, the solution is not to encourage people to do their own legal surgery. The answer is to make it more likely that they will have a competent surgeon.
I am not a fan of pro se litigation. Even seemingly simple, routine matters may have serious implications for the parties, and I assure you that they have absolutely no clue about those ramifications. Self-represented litigants seldom have a grasp of the ramifications and complexities of equitable distribution, the various forms of child custody, or joint debt, to name but a few of the many legal snares that await the unwary. Also, the parties are under no duty to be honest and forthright with the court, leaving open the very real possibility of fraud or worse. Without legal advice and the check that an ethical attorney provides, the parties’ paperwork can create more problems than it solves, and even in the absence of lawyers it is clearly not the duty of the judge to advise them about the possible mess they may be creating. Yet, every day, inexorably, we see more and more self-represented litigants.
I am a firm believer in access to justice, but in our commendable haste to discover a way to do that, let us not lose sight of what it is we are trying to achieve: access to justice. Not access to disaster. Limited scope representation may be a good first step toward alleviating this problem.
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