Second District Awards About Only a Tenth of Requested Fees Based on Failure to Segregate Services and Comply With California Rules of Court.
Here is a new area that we have not yet addressed—attorney’s fees awarded in a conservatorship. As in other substantive areas, it is necessary to provide proper substantiation in order to obtain a substantial fee award.
Probate Code sections 2640 and 2623 allow the trial court to award a conservator for reasonable attorney’s fees expended in performance of conservatorship services as long as the compensation is “just and reasonable.” Beyond this, however, a conservator must comply with rules 7.702 and 7.751(b) of the California Rules of Court, requiring that a conservator’s attorney must (1) show the nature/difficulty of tasks performed; (2) show the results achieved; (3) show the service benefits to the conservatorship estate; (4) specify the amount requested for each service category performed; (5) state the hourly rate of each person who performed services and the hours spent by each; (6) describe with specificity the services rendered to demonstrate time productivity; and (7) state the estimated amount of statutory compensation to be paid by the estate if the petition is not part of a formal accounting. As with other areas of the law, the reasonableness fees question is one committed to the discretion of the trial court. (Conservatorship of Levitt, 93 Cal.App.4th 544, 549 (2001), citing PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1096 (2000) [one of our Leading Cases]; Estate of Merritt, 98 Cal.App.2d 70, 76 (1950).)
In Conservatorship of Samuels, Case No. B195217 (2d Dist., Div. 4 Aug. 21, 2008) (unpublished), conservator filed a petition for fees, seeking about $450,000 for services rendered to her parents as caregiver, conservator, and attorney (with $200,000 of the requested sum representing claimed attorney’s fees). The probate court, as germane to our blog, only awarded $25,000 for legal services and denied conservator’s request for fee sanctions based on the claim that some objectors made frivolous objections to the accountings. Except for a minor modification on one other unrelated issue, the Second District, Division Four—in a 3-0 opinion by Justice Suzukawa—affirmed the lower court determinations.
Affirmance was not difficult because conservator did not submit fee petitions that complied with rules 7.702 and 7.751(b). Services were described in the most general terms, with vague entries matched to substantial hourly claims. Conservator also admitted at the fee hearing that there was an overlap between attorney services and conservator services, without any meaningful breakdown except for a “blended rate” that still did not offer specificity with respect to services rendered. Nothing in the fee schedule submissions came close to justify the $200,000 in requested fees. No abuse of discretion was shown in the ultimate $25,000 fee award by the probate court.
Probate Code section 2622.5(a) authorizes the probate court to pay attorney’s fees to a conservator if it determines that an objector’s objections to probate accountings “were without reasonable cause and in bad faith” in the situation where the conservator incurred fees to defend the accountings. The trial court in Samuels refused to award such sanctions, a ruling that was sustained on appeal. The appellate panel found that some of the objections were conceded or well-taken. Although affirming the sanctions denial, Justice Suzukawa did note that our state supreme court is reviewing the issue of whether attorney’s fees can be awarded as sanctions to an attorney who is representing himself/herself in a sanctions proceeding. (See Musaelian v. Adams, 153 Cal.App.4th 882 (2007), rev. granted Oct. 10, 2007.) Stay tuned at this blog, because we will review the results of this decision when it comes down from the California Supreme Court.