How much is this going to cost? A short history of Illinois probate fees (Part 2)
If fee schedules are out, how are attorney’s fees in Illinois probate estates to be determined? The Illinois Code of Professional Responsibility cites several factors that are to be considered in determining the reasonableness of any attorney’s fee. These include, (a) the time and labor required (b) the novelty and difficulty of the questions involved (c) the likelihood that acceptance of the assignment by the attorney precluded other employment (d) the amount involved and the results obtained (e) the experience and reputation of the attorney. Illinois courts have held in the probate context that the most important of these elements is the number of hours worked on the assignment by the attorney. Therefore, the most important evidence in a probate petition for attorney fees are the attorney’s time records indicating how much time was put in and the tasks accomplished. The time records should be detailed with regard to the date and time expended and the nature of the task accomplished. The time records will have more evidentiary value if they were kept contemporaneously with the work done (as opposed to reviewing the file at the end of the assignment and trying to compute the time expended).
Number of hours is one part of the fee calculation. The hourly rate is another. Many courts ignore the rate customarily charged by the particular attorney and instead limit recovery to the “standard” or normal hourly rate charged in the particular jurisdiction for similar work.
The court always has the ultimate discretion in determining what attorney’s fees should be in a probate context. If the heirs and legatees accept the fees being sought by the probate attorney, then the court typically will not get involved. But if an attorney’s fees are challenged, the court will make the ultimate decision on what is reasonable. And this is true even if the estate representative (the executor or administrator) signed a fee agreement with the attorney at the outset of the representation agreeing to paying a set fee.
Are basing fees primarily on the time expended a better way to determine attorney’s fees than using a fee schedule? The argument against the use of fee schedules is that they are arbitrary and can often result in attorney fees that bear little relationship to the amount of time and effort put in by the attorney. A fee schedule can yield a sizable fee on a large estate with one or two high-value assets, when, in reality, the effort needed to administer those assets may be minimal. Conversely, some of the most difficult and time consuming estates I have been involved in were smaller estates (less than $200,000 in value), where a fee schedule would yield a relatively small fee.
Yet, to base fees solely on a calculation of the hours put into an estate, seems to many to reward the inefficient attorney—the fellow who puts devotes inordinate amounts of time on even the simplest matter, due to either a lack of expertise, inefficient work habits and practices, or due to larceny in his heart. That is right, larceny in his heart. I am sad to say that I have reviewed many probate attorney fee petitions over the years, and more and more I see petitions where an attorney takes time-billing to the max, charging for researching even the most basic points of law. I have even seen fee petitions where an attorney researched how you obtain a taxpayer identification number for an estate (that is the equivalent of a baker needing to research how to sift flour). I have seen fee petitions where the mundane act of filling in the blanks on the court forms required to open an estate took the better part of an hour (I will bet that attorney chews every mouthful of food thirty times). I have seen fee petitions where an attorney attempted to charge an estate three hours of time while he waited at the decedent’s house for a plumber to come and unclog a toilet.
In my opinion, overall probate attorney’s fees were smaller when I was a young attorney, when probate fees were informally governed by the fee schedule. The current status of the law of attorneys fees in probate matters, which makes the billable hour the be-all and end-all of probate attorneys fees, has incentivized attorneys to maximize their time put in on a file, by either being hyper-diligent or by engaging in generous time-keeping practices.
What is hyper-diligence? It is the practice of an attorney to claim that he must engage in activities that, on their face, seem to benefit the estate, but in reality, only benefit the attorney’s pocketbook. A clear example I lived as a young attorney comes from the divorce arena. When I was a young attorney, a husband-client came to me who had been married for just three years. The couple had no children. Both were blue-collar people (he worked as a truck driver), who did not make much money, had saved about $2,000 during their marriage and lived in his mother’s two flat. Like many newly marrieds, they had virtually nothing in the way of assets. The case should have been settled in five minutes, but the attorney for the wife insisted on taking my client’s deposition to ascertain whether or not my client had hidden any assets during their brief marriage. When I questioned why on earth any depositions were needed, the attorney responded that she could not risk committing malpractice by not diligently representing her client. Since there typically is no way to prevent a deposition when a party requests to depose the other party, the deposition proceeded, nothing was uncovered that wasn’t already known and the divorce was granted. But not before the attorney for the wife presented a fee petition alleging that she should be paid for her time in representing the wife and taking the deposition. You guessed it—the wife’s attorney ended up with the entire $2,000 the couple had saved.
The practice of law is as much an art as a science. We attorneys have to make judgments every day about what should or shouldn’t be done on behalf of a client. Do I need to research that point or am I confident in my knowledge? If I research it, should I write a memo to the file? Should I memorialize that phone call (and incur more time on the file)? Should I write a letter to the client about this matter or make a determination that it isn’t that important to write about? Should I write to the other attorney or just phone him (phone call is quicker, but a letter is a permanent record)? Attorneys engage in these decisions every day, on every file. That is the art of practicing law. If an attorney wants to be hyper-diligent (and really run that billing meter), then he would answer every one of these questions with an enthusiastic “yes”—and make sure he entered all that time. But was that time all necessary to effectively, and efficiently, represent the client? Should an attorney’s goal be effective and efficient representation of the client or perfection?
What is my conclusion about the status of legal fees in Illinois probate estates? We have ill served the public by abolishing fee schedules and worshiping at the altar of the billable hour. At Reda|Ciprian|Magnone LLC, we will represent your interests to the best of our ability, while balancing the need for effectiveness with the need for cost efficiency. At RCM, every file will receive competent representation, but not perfect representation. Perfection in any endeavor can seldom be achieved and should not be the goal of any attorney. In every probate assignment, we will offer you the choice between an hourly-based attorney fee or a fixed fee up front. We believe we serve our clients needs better by offering them a choice as to fees.