Appellate Court Also Discusses Timing of Fee Petition As It Relates To Conservatorship Final Accountings Under Local S.F. Court Rule.
Conservatorship of Xie, Case No. A133079 (1st Dist., Div. 3 Apr. 17, 2012) (unpublished) was a situation where the appellate court affirmed a trial court’s 40% reduction of fees and costs claimed from a conservatorship estate, based mainly on deductions for expenses that benefited conservatee’s wife (not the conservatorship) and for administrative, clerical tasks that should not have been claimed as fees.
However, what caught our eye was the appellate court’s discussion of the proper timing of a fee petition in a conservatorship case.
The lower court went on to decide a fee petition request before an accounting was made in the conservatorship, but there was considerable discussion about S.F. Local Rule 14.96(B) expressing a preference that a fee petition be determined at the time an accounting is considered. The reason was that the court then has a more global picture of the conservatorship estate, and what assets are or are not part of it. The appellate court found no inconsistency with this local rule and Probate Code section 2640(a), which does allow the lower court to consider a petition for compensation which is filed earlier than the time for an accounting (i.e., after the filing of the inventory/appraisal but not before 90 days running from the letters of issuance). “If an attorney seeks to be compensated before an accounting has been performed, the attorney should expect a fee petition to receive careful scrutiny. . . . Although the court was authorized to do so under California Rules of Court, rule 7.752, it did not order an accounting before ordering the conservator to pay fees. Given the straightforward composition of the conservatorship estate in this case–consisting entirely of litigation proceeds [to the conservator under a compromise settlement in favor of conservatee]–it is not surprising the court decided to forgo an accounting under the unqiue circumstances presented here.” (Slip Opn., pp. 12-13.)
So, to summarize, it usually will be the case that fee petitions should accompany an accounting in a conservatorship case. However, that can be varied where the peculiar circumstances show no need for a more global picture of the estate from the accounting, especially (as here) where is was a “single asset” situation. However, only fees reasonably rendered to the conservator will be compensated (Prob. Code, § 2642(b)), which means there may be reductions for unnecessary or clerical expenses.
Finally, this opinion underscored that there is no statutory requirement that the probate court make specific findings of fact supporting an allowance for attorney’s fees and costs, similar to the general rule that no statement of decision need be rendered on these issues in civil cases. (Prob. Code, §§ 2640(a)(3), (c), 2642.)