Schlesinger v. Jacob

Schlesinger v. Jacob, 240 So.3d 75 (Fla. 3d DCA 2018)

In this decision, the 3rd DCA adopts the requirement that an attorney's services must benefit a ward or the ward's estate in order to be entitled to fees. The Court focuses on the different standards under the statutes to determine entitlement to fees, versus the standard to determine amount and reasonableness of fees

On one hand, F.S. 744.108(1) governs entitlement to fees, and provides:

A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.

Case law construing this section has uniformly added in the requirement that the services must benefit the ward or the ward's estate, despite the fact that the word "benefit" appears nowhere in the statute.

On the other hand, F.S. 744.108(2) deals with the amount and reasonableness of fees once it is determined that an attorney is entitled to fees. It provides:

When fees for a guardian or an attorney are submitted to the court for determination, the court shall consider the following criteria:
(a) The time and labor required;
(b) The novelty and difficulty of the questions involved and the skill required to perform the services properly;
(c) The likelihood that the acceptance of the particular employment will preclude other employment of the person;
(d) The fee customarily charged in the locality for similar services;
(e) The nature and value of the incapacitated person's property, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person;
(f) The results obtained;
(g) The time limits imposed by the circumstances;
(h) The nature and length of the relationship with the incapacitated person; and
(i) The experience, reputation, diligence, and ability of the person performing the service.

It seems clear from the language of the statute that the results obtained by the lawyer would be relevant in determining the amount and reasonableness of the fee, rather than entitlement, but for now, courts have unanimously read this requirement into the threshold entitlement question as well.

I urge practitioners who are involved in guardianship matters to read the concurring opinion by Judge Robert Luck. He expresses his concerns about the added requirement that an attorney's services "benefit" the ward and notes that if fees are only awarded to successful litigants, family members may be less likely to bring guardianship actions out of concern for how the attorney will be paid, leaving vulnerable persons with less oversight by the courts.


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