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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