Attorneys’ Fees in Probate Cases – New Illinois State Bar Association Ethics Opinion.

The Illinois State Bar Association (“ISBA”) has issued an advisory opinion that attorneys representing clients in probate cases cannot ethically collect fees in excess of the amount determined to be reasonable by the court. Here is one common scenario:  An attorney is hired to represent the executor of an estate in probate court.  An executor is named in a person’s will.  The attorney enters into an hourly-rate fee arrangement with the client (executor), which provides that the estate will pay the attorney’s fees, but if the probate court disallows any part of the attorney’s fees as excessive, then the client shall pay the disallowed portion of the fees to the attorney from the client’s separate and individual funds.  The ISBA’s advisory opinion declares this type of agreement to be unethical.

The Illinois Probate Act provides: “The attorney for a representative is entitled to reasonable compensation for his services.”  755 ILCS 5/27-2(a).  There is no provision in the Probate Act requiring that the executor’s attorney’s fees and costs be paid exclusively from the estate.”  In re Estate of Elias, 408 Ill. App. 3d 301, 323 (1st Dist. 2011).  However, the ISBA’s opinion declares that a lawyer and executor cannot agree that the executor will personally pay fees that have been disallowed by the probate court as being excessive (i.e., unreasonable).

Illinois Rule of Processional Conduct 1.5(a) begins as follows: “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”  The ISBA opinion states that if a legal fee is deemed excessive by a probate court, it likewise is excessive under Rule 1.5(a).  (Note: ISBA opinions are not binding on the courts or disciplinary agencies, but they are often considered by them in evaluating the conduct of lawyers.)

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