In re Guardianship of Rawl

In re Guardianship of Rawl, __ So.3d __, 2014 WL 889050

An attorney for a ward, noticing internal inconsistencies in the reports of the examining committee, took it upon himself to contact one of the committee members and ask her to reassess the ward.  He then attempted to file the reassessment with the guardianship court, but the guardianship court said it was "inappropriate" for him to have contacted an examining committee member, and similarly it was "inappropriate" for him to file the reassessment.  At the same time, however, the court appointed a second examining committee to evaluate the ward, because it was troubled by the fact that the reassessment contained different findings than the original assessment, and because it also noted the inconsistencies in the original reports.

The second examining committee found the ward to be completely incapacitated and appointed guardians of the person and property for the ward.  The attorney then filed for his fees and costs, and presented expert evidence that his hourly rate was reasonable, that he obtained the reassessment report because he had legitimate doubts about the original report and he did not intend for a second committee to be appointed, and that his actions benefited the ward.  The trial court reduced the attorney's hourly rate by half of the fees incurred related to the appointment of the second examining committee and imposed the total cost of the appointment of the second examining committee against him.  The court's comments seemed to indicate that the reduction in fees and assessment of costs was more in the nature of a sanction for contacting the examining committee member than because his fees and costs did not benefit the ward.

On appeal, the attorney argued that the trial court abused its discretion in reducing his fees and charging him for costs, since he had established that his services benefited the ward.  An attorney who renders services for a ward is entitled to a "reasonable fee" pursuant to F.S. 744.108, as long as his services benefit the ward or the ward's estate.  Thorpe v. Myers, 67 So. 3d 338, 345 (Fla. 2d DCA 2011).  The Court held that the trial court's finding that his fees were not for the ward's benefit was not supported by competent, substantial evidence.  The act of seeking a reassessment, based on concerns about the accuracy of the report, especially in light of the problems with the original reports, clearly benefited the ward.  F.S. 744.331 does not prohibit an attorney from contacting an examining member and seeking a reassessment, the trial court did not find bad faith in the attorney's actions and the court had similar concerns with the original reports.  Therefore, even if the way the attorney handled the reassessment was improper, the court's finding that his fees did not benefit the Ward was not supported by competent, substantial evidence, and therefore the trial court should reconsider his petition for fees and expenses.

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