Excessive Probate Fee Draws Reprimand

Justice Botsford of the Massachusetts Supreme Judicial Court approved findings that an attorney had charged excessive fees in a probate matter and imposed a reprimand in an order that does not disclose the attorney’s identity.

The respondent was admitted to the Massachusetts bar in 1988. From approximately 2002 to the present, she has worked as a solo practitioner, with about twenty-five to thirty per cent of her practice consisting of probate matters. In May of 2002, the respondent prepared a healthcare proxy, a durable power of attorney, and a will for her client, who executed the documents that month. The respondent was named in them as the healthcare agent, the attorney in fact, and the executrix of the client’s estate, and was also to be the attorney for the estate. The will provided for two charitable bequests and, after directing the executrix to sell the client’s personal property, left the remainder of the estate to a friend of the client and children of other friends.

The client died in 2006.

The attorney served as executrix of the estate worth $1.2 million and charged over $134,000 in fees.The probate court approved the fees.

Bar Counsel filed charges and

Although the Probate Court accepted the amended first and final account, the hearing committee found that the fees that the respondent charged as executrix and as attorney were clearly excessive. In reaching this determination, the hearing committee implicitly appeared to accept that the respondent’s hourly rates were reasonable, but nevertheless concluded that the number of hours she spent on the estate was unreasonable. It concluded that a reasonable total for both executrix and attorney services for an estate of this size would have been approximately $60,000-$65,000 rather than the $134,437.50 that the respondent had charged and received. In particular, with respect to her executrix fees, the hearing committe~ noted that the respondent charged the estate more to sell the furniture and furnishings than their value of $15,410, including charges for multiple trips to consignment shops and a $4,644 consignment fee. The respondent also spent and charged for two internet car listings. After charging the estate for three hours to clean out a safety box and locate a cemetery deed, the respondent subsequently charged the estate approximately four additional hours to verify that the safety deposit box was empty and to close it. Additionally, the respondent made twenty-four trips from her home or law office to the testatrix’s condominium.

With respect to legal fees, the respondent charged more than thirty hours to prepare and file the first and final account for the Probate Court; the hearing committee found that a reasonable amount of time for this task would have been approximately four to five hours. Despite being able to mail a petition to the Probate Court, the respondent instead charged three hours to file the petition for approval of the court in person, including her travel time. Additionally, the respondent spent approximately twenty-one hours preparing estate tax returns even though the respondent has an LL.M in tax law and the task could have been performed in under five hours using tax preparation software.

The court

I appreciate that none of the individual fee amounts referred to in the preceding paragraph is outrageously or even remarkably high; the  same is true of the fee total of $134, 437.50, ·particularly when viewed in light of the total value of the client’s estate. But what is “clearly excessive” obviously must be considered in a particular factual context, and when evaluated in light of the specific facts presented here about the nature of this client’s estate, I conclude that the fees were clearly excessive…

Turning to the nature and length of the respondent’s professional relationship ·with her client, I accept that during the final years of the client’s life, the respondent worked closely with her and, it appears, the client put great trust in her. But to some extent, the close relationship between attorney and client, and in particular the respondent’s familiarity with her client’s home, property, and assets overall, support the hearing committee’s and board majority’s conclusion that the many hours spent by the respondent in collecting and disposing of client’s personal property, as well as in preparing the final account and estate ta.’: return were grossly excessive. Finally, with respect to the respondent’s experience and reputation, the factor does not appear particularly relevant or helpful to her position. As stated, the evidence shows this was a relatively simple estate that did not require special or particular skills to administer. The respondent’s advanced degree in taxation and her apparent experience in administering estates argue in favor of requiring less rather than more time to administer this one.

Sanction

in the present case, the evidence indicates that from when she first began to represent the client in 2000 until the client’s death in 2006, the respondent committed herself to providing the client with attentive, competent legal services and to make sure the client’s needs were met. This is not a case with any evidence of bad faith or overreaching on the respondent’s part, nor one involving charges of disciplinary rule violations in addition to the fee issue. Nor is there any aggravating factor of prior discipline: the respondent has none. The amount of professional time the respondent spent on this estate was clearly excessive, but there is no suggestion that she charged the estate for more hours than she actually devoted to the tasks that were listed. Finally, as a result of the settlement with the beneficiaries regarding the first and final account and the fees charged, the respondent paid each of the contesting beneficiaries $10, 000 from her personal funds. In all the circumstances, I conclude that an admonition, with the additional requirement that the respondent attend a continuing legal education course on estate administration to be approved by bar counsel, is not markedly disparate and is the appropriate. sanction.

The court held that the probate court’s approval of the fees did not preclude discipline and that testimony concerning the wishes of the client that her treasured possessions find a good home did not alter its conclusions. (Mike Frisch)