When can a probate court assess attorney’s fees against a beneficiary’s portion? Can a party be awarded attorney’s fees for time spent pursuing attorney’s fees (“fees on fees”)?
The Fourth District answered these questions, once “the jig was up,” in the recent opinion of Rebecca Geary as Personal Representative of the Estate of Janice White v. Butzel Long, P.C., et al. (Warner, Stevenson, and Damoorgian).
In a long fact pattern, a personal representative retained several law firms in a probate matter, including the last firm which submitted a $4,127 bill in mid-2004. The PR retained new counsel who fought that bill… for two years, racking up over $20,000 in additional fees and costs. The trial court noted that the PR and her attorney should have known “the jig was up.”
Worse still, the PR and counsel paid themselves $18k and $43k respectively during this time period, thus leaving inadequate assets in the estate should they lose the issue. In 2007, they lost and the trial court entered an award of $49,000 in fees and costs to the law firm. The trial court further held that the PR should have gotten court approval before paying herself and counsel before a substantial creditor (law firm). The PR was deemed not to be acting in the best interest of the estate — and both PR and new counsel were ordered to pay back the money.
On appeal, the Fourth District clarified Florida Statutes 733.6171, 733.6175, and 733.106(4) and its own 1990 decision in In Re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990), finding that fees can be awarded upon a finding of bad faith, wrongdoing or pursuit of frivolous claims. The Fourth is now aligned with the Third District on this issue. It also creates a precedent for awarding attorney’s fees for having to seek fees (“fees on fees”) in probate cases.