Matter of Clark

[*1] Matter of Clark 2006 NY Slip Op 51931(U) [13 Misc 3d 1221(A)] Decided on October 10, 2006 Surrogate's Court, Monroe County Calvaruso, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 10, 2006
Surrogate's Court, Monroe County

In the Matter of the Judicial Settlement of The Estate of Melba J. Clark, Deceased.



2005-1051/A



Audrey Cooper, Esq., Assistant Attorney General, objectant.

Lisa Powers, Esq., for Jeanne A. Bartlet, executor/petitioner.

Edmund A. Calvaruso, J.

BACKGROUND

This matter is a judicial settlement proceeding of a $22,000 estate. The Attorney General has filed objections to the legal fees sought by counsel, which amount to $7,100. The objection is grounded upon the fact that the fees greatly exceed the size of one executor's commission ($1156), a "rule of thumb" local guideline that is related to the size of the estate. Both sides have waived a hearing on the matter and consented to a decision issued on papers.

OPINION

Attorneys' fees are to be evaluated by the Surrogate, who has the responsibility for ensuring that legal fees in estates are within the bounds of reasonableness. Matter of Middagh, 276 AD2d 593 (1999). As case law has discussed, the "reasonableness" of an attorney's fee is to be determined by an evaluation of the Freeman/Potts factors. They are as follows:

time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved. Matter of Freeman, 34 NY2d 1, 9 (1973)

In this estate, the agreement between attorney and client was that the total legal fee would be computed upon an hourly basis. This is a perfectly appropriate form of fee computation, provided that the total sought is reasonable in the totality of the circumstances. The Attorney General's objection to this fee in this matter is that it puts too much emphasis on the time expended and is unreasonably large for this very small estate.

The affirmation submitted by the attorney has been reviewed in great detail by the Court. Each hour expended has been well documented and is an appropriate expenditure of legal or paralegal [*2]resources. The Court has reviewed the affirmation seeking instances of duplicity in services or lack of efficiency in the expenditure of time, the two primary areas where attorney fees should be cut, and has found none. This estate included a number of extra hurdles which an estate of its size normally would not include. Though the estate assets were barely above $20,000, there was no way probate could have been avoided, as decedent did not leave a spouse or minor child who could have received some of the assets as exempt property leaving the other assets to be cheaply administered via a voluntary administration. The probate was complicated by missing and unknown distributees, and a need for publication. The administration was lengthened by the fact that decedent drafted her own will, and the fact that she included Cuban nationals as estate beneficiaries, therefore requiring extra legal resources to sort out the problems incident to this unique issue. Lastly, a judicial settlement was required to close out this estate, something which is not typical for such small estate sizes.

Though the court agrees with the Attorney General that the fee requested is very large in comparison to the size of the estate, the Court has found no incidences of padding in the attorney affidavit or places where the fee is not justified. Furthermore, the existence of complicating factors in this estate explains a large percentage of the fee requested. Lastly, the agreement between the client and the attorney was that the fee would be based upon the time expended.

Therefore, the attorney fee is hereby approved in full.

October 10, 2006______Edmund A. Calvaruso__/s_______

Hon. Edmund A. Calvaruso, Surrogate