Taxation & Estate Planning

4th DCA: How far can you cut attorney fees before it's an abuse of discretion?

By Juan C. Antúnez

Glantz and Glantz, P.A. v. Chinchilla, --- So.3d ----, 2009 WL 1531644 (Fla. 4th DCA June 3, 2009)

An appellate court won't reverse a probate judge's ruling cutting attorneys fees unless there's been an "abuse of discretion." In other words, if reasonable minds could disagree on how the court should have ruled, then the appellate court must affirm the trial court's ruling . . . even if the appellate judges would have come to a different conclusion. Here's how the Florida Supreme Court put it in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980): "the appellate court must fully recognize the superior vantage point of the trial judge . . . . If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.'

So it's a rare case indeed when an appellate court comes across a set of facts that compels it to step in and reverse a fee ruling that is so patently unfair it simply can't be left alone. This is one of those cases. Here are the facts:

The personal representative of an estate was a member of prepaid legal services program. The program referred her to the law firm of Glantz & Glantz, P.A., where the personal representative retained Mark Mastrarrigo to handle estate matters.

Subsequently, the personal representative wrote a letter to the court expressing her concern about the law firm's billing, prompting the trial court to conduct an evidentiary hearing. Testimony revealed that the attorney documented 123 billable hours defending a will contest, filing and pursuing a motion to disqualify another attorney based on a conflict of interest, and working with a curator in connection with the sale of the estate's property.

Pursuant to the prepaid legal services program, the attorney charged $115 per hour, a 51% discounted rate from the normal billing rate of $225 per hour. The total charges amounted to $12,400 plus costs. The law firm submitted an affidavit from an expert attesting to the reasonableness of the fees and costs, specifically that $13,500 was a reasonable fee for the services rendered. Testimony evidenced that this amount was based on the discounted hourly rate and not on the normal billing rate.

The court entered an order awarding the law firm fees in the amount of $6,885, 51% of the $13,500 reasonable fee attested to by the expert. The court denied the law firm's motion for rehearing, from which the law firm now appeals.

The 4th DCA went on to explain the legal basis for its reversal as follows:

Here, the prepaid legal services contract rate of $115 per hour is presumed to be reasonable. See, e.g., Sotolongo v. Brake, 616 So.2d 413, 413-14 (Fla.1992). The 123 hours expended is also reasonable given that the attorney testified to the services rendered by the law firm in representing the personal representative in a will contest, a motion to disqualify another lawyer, and work done with the curator. The trial court accepted the expert's affidavit that $13,500 was a reasonable, already discounted fee. The trial court did not find the hours or the discounted rate to be unreasonable. Nevertheless, the trial court inexplicably reduced the reasonable fee by another 51%. In doing so, it abused its discretion.

The exception that proves the rule.

The fact that the probate attorney won this fee dispute shouldn't embolden anyone; it's an exceptional case that only proves your fees have to be ridiculously low to begin with to have a prayer of winning on appeal. Not a good strategy for staying in business for very long. The better lesson to be drawn from this case is that fee disputes are no-win situations. And the best way to win that battle is to take the time up front to make sure your client doesn't object to your fees once you've done all the work. Billing is part science, part art. For an excellent article discussing how to get this right in the trusts and estates context, read Understanding the Legal and Emotional Aspects to Billing and Collecting for Legal Services [click here for slide show] by frequent lecturer and Chicago estate planning attorney Louis Harrison.

Full post as published by Florida Probate Litigation Blog on June 26, 2009 (boomark / email).