LawYer as fiDuciarY: informeD consent reQuireD
Real Property Probate & Trust Section Chairs: Kristin Morris – Shutts & Bowen & Anthony Diecidue – Genders Alvarez Diecidue
Cases abound wherein lawyers have been criticized, sued, and even suspended for writing themselves in to their client’ s estate plan as a fiduciary. See, e. g., Rand v. Giller, 489 So. 2d 796( Fla. 3d DCA 1986). The Florida Supreme Court takes such fiduciary appointments so seriously that it recently adopted an amend- ment to Rule 4-1.8 of the Florida Rules of Professional Conduct.
Effective February 1, 2018, it is a violation of the Rules for a lawyer to prepare a document that appoints the lawyer or a person related to the lawyer to a fiduciary office( e. g. personal representative, trustee, trust protector, etc.) unless“ the client is properly informed, the appointment does not violate rule 4-1.7( conflict of interest), the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.” See Comments to R. Regulating Fla. Bar 4-1.8. Indeed, the comments refer to such an arrangement as a“ conflict,” but one which the client may waive so long as the client
gives“ informed consent.” Id.
The Florida Probate Code specifically authorizes payment of fees when a lawyer who serves as a fiduciary also renders legal services to the estate:“ If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.” § 733.617( 6), Fla. Stat.
But, when the lawyer for the estate is also the personal representative, such fees are potentially limited by section 733.612( 19).“ Any fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’ s compensation.” § 733.612( 19), Fla. Stat.( emphasis added); see also § 733.6171( 5)( g)( listing“ compensation paid to other professionals and fiduciaries” among the factors the court shall
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the florida supreme court takes such fiduciary appointments so seriously that it recently adopted an amendment to rule 4-1.8. consider in determining the reasonableness of compensation to the personal representative’ s lawyer); Section 733.617( 7)( g), Fla. Stat.( listing“ compensation paid to other professionals” among the factors the court shall consider in determining the reasonableness of the compensation paid to the personal representative).
At a minimum, before the lawyer may prepare a document that appoints the lawyer as a fiduciary, the lawyer must advise the client( 1) who is eligible to serve as a fiduciary,( 2) that a person who serves as a fiduciary is entitled to a fee,( 3) that if the lawyer serves as a fiduciary, the lawyer is entitled to a fee for serving as a fiduciary, and( 4) the lawyer or lawyer’ s firm may also be entitled to legal fees that are in addition to the fees assessed by the lawyer as fiduciary.
Author: Robert S. Walton – Law Offices of Robert S. Walton, P. L. is Your contact information up-to-Date with hcBa? go on the member portal at hillsbar. com today to make sure your profile is correct!
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