ATTORNEY’S FEES IN AN ESTATE

January 19, 2011 § 2 Comments

Every administrator or executor is required by Uniform Chancery Court Rule (UCCR) 6.10 to have an attorney to represent him or her in connection with administration of the estate. 

The attorney’s fees of the administrator or executor are not the obligation of the estate, but are the personal obligation of the fiduciary, but they may be allowed by the court as part of the administration expenses.  Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss. 1986).  In order to be properly allowed by the court as administration expense, the attorney’s fees must benefit the estate, and fees which do not benefit the estate are properly disallowed.  Estate of Collins v. Collins, 742 So.2d 147, 149 (Miss. App. 1999).     

In making his determination of an attorney fee award, the chancellor must weigh several factors:

“The factors which the chancery court considers in fixing the amount of reasonable compensation are varied.  Among those factors, however, are the following:  time, skill, the responsibility, the monetary value of the estate administered and its liquidity, the speedy disposition of the business, the services of the attorney, the practice of attorneys in that court and the charging of fees for similar services, the complexity of the issues, and the necessity of litigation concerning the estate business.”  Scott at 814.

I disallowed a claim of more than $20,000 for attorney’s fees in an estate where no action had been taken in 18 months after the qualification of the fiduciary, the fiduciary and not the attorneys had done most of the work, the attorneys were charging more than $350 an hour, the reasonable hourly rate in this district is $185, the estate was fairly simple and should have been closed in less than a year, and a substantial portion of the fees were attributable to the fiduciary resisting the sole beneficiary’s efforts to have him ousted for inaction.   

If you want to get paid for your services to the fiduciary, you had better become very familiar with UCCR 6.11 and 6.12. 

This judge will require that an itemized statement of services rendered by filed in the court file and, preferably, be attached as an exhibit signed and sworn by the fiduciary.  The old practice of filing a broad, general statement of services without showing the time expended, is no longer acceptable.  The purpose of an itemized statement is to disclose to all interested parties what services were rendered for the benefit of the estate, and to allow them an opportunity to be heard, pro or con.  The best practice in a final account is to attach the attorney fee statement as an exhibit to the petition to close so that all interested parties will have notice and opportunity to agree by joining in the petition or to contest it.      

If the petition for fees is based on recovery of damages for wrongful death, UCCR 6.12 imposes some specific and stringent requirements.  The fee allowed ” … will be fixed by the chancellor at such sum as will be reasonable compensation for the service rendered and expense incurred without being bound by any contract made with any unauthorized persons.”  Any agreement for a contingent fee must be approved in advance by the chancellor.  In other words, if you don not get your contract approved in advance, you will be working on a quantum meruit basis rather than on a contingency.

ATTACK OF THE KILLER EARWIGS

September 1, 2010 § 1 Comment

Bedbugs

The latest fad in the anxiety/nightmare industry is bedbugs.  Seems like every media outlet has close-up photos of the little beasts the size of shetland ponies roaming mattresses across the country in cornucopious profusion awaiting fleshy morsels to chomp off of unwary humans. 

In Chancery Court our “bedbug” is the dreaded earwig.

Uniform Chancery Court Rule 3.10, entitled EARWIGGING THE CHANCELLOR PROHIBITED, provides in part: 

“No person shall undertake  to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.  No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.  No person shall send any written communication to the Chancellor concerning a pending action in  the Court without delivering or mailing a copy of that communication to the opposing party …”   

The language about written communication and copy to the opposing side has given rise to a curious practice among some attorneys that can be illustrated in the following scenario:

Lawyer A sends a letter to the Chancery Judge describing the scurrilous actions of the opposing party, including pillage,  wantonness and rapine.  There in the lower left-hand corner of the letter is the notation “cc:  counsel opposite.” 

When the judge questions the propriety of the letter, Lawyer A responds innocently that he complied with the rule because he sent a copy to opposing counsel.  

With all due respect, if any is due, that practice is undoubtedly in violation of the rule and is, without question, earwigging.

Potential earwigs

The provision for copy of written communication to opposing counsel includes no exception to the preceding two sentences prohibiting communications about the merits of the case.  It simply means that, if communication by letter is proper, as where it is necessary to transmit a copy of an agreed order, then a copy of the proper communication must be sent to opposing counsel. 

By the time that opposing counsel has received a copy of the ex parte correspondence, the damage has already been done.  The bell cannot be unrung, as the adage says.  The judge has heard one side alone on the matter, and the judge’s impartiality and independence is in question from then on out.  If the judge rules for the side that sent the letter, was the judge unduly influenced?  If the judge rules against the side that sent the letter, was the judge trying to lean the other way to prove impartiality?  We can never know what might have been because the ex parte communication has called the judge’s impartiality into question.

In my court, if you have allegations to make on the merits, put them in the form of a pleading and set the matter for hearing, and I will make a judgment after hearing both sides.  Don’t poison the well that both parties have to drink from.

If you introduce the dreaded earwig into Chancery Court, prepare to be fumigated.

Genuine earwig

Genuine Ear Wig

PROPOSED CHANGES TO RULE 8.05

August 24, 2010 § Leave a comment

The Supreme Court has posted proposed revisions to Uniform Chancery Court Rule 8.05 and your comments are invited.

There is, arguably, no Uniform Chancery Court Rule that affects Chancery practitioners more strongly than 8.05.  If you have a position on this proposal, you need to make it known before final action.  The deadline is September 20, 2010.

JUDGING IN THE BLIND

August 2, 2010 § 5 Comments

Is this you?  Your client, Otis, is on the witness stand.  Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side.  You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate.  The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct.  Give yourself a gold star and a pat on the back for a correct answer to this quiz.  Give yourself a big, fat F for your trial technique. 

Uniform Chancery Court Rule 3.05 states that, “Unless excused by the Court, it shall be the duty of an attorney to distribute copies of any exhibits to the Court and opposing counsel when offered.”  That includes the Rule 8.05 financial statements.

Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up.  That’s a pretty shrewd practice. 

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind.  Put yourself in the judge’s shoes:  Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.   

The principle is not limited to financial statements.  I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each.  To this day, I have no idea what the witness was talking about.  Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client.  How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at.  That’s like sending the poor client into a knife fight without a knife.      

I have actually begun stopping trials and ordering attorneys to comply with Rule 3.05.  The lawyer who complies with Rule 3.05 not only appears to be prepared, professional and effective; she is prepared, professional and effective.  Surely you don’t want to be embarassed by appearing unprepared and clueless.   

Practice Tip:  Always have the original and FOUR copies of all exhibits.  That’s the original for introduction into evidence, copy one for yourself, copy two for your client, copy three for opposing counsel, and copy four either for the opposing party or for the court to mark up.  Copies are cheap, compared to cost to your client of not having them.

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