When a personal injury client dies and the lawyer must hire separate probate counsel to appoint a representative, can the lawyer charge those probate fees as a disbursement?

Plain-English summary

The inquirer is a personal injury lawyer. When a client dies during a lawsuit, the inquirer (lacking probate expertise) typically engages a lawyer at another firm to open a probate matter and have a personal representative appointed, then moves under CPLR § 1015(a) to substitute that representative as plaintiff. In most of these cases, no probate would be needed but for the personal injury litigation, since the estate has no other assets requiring probate. The inquirer asked whether probate counsel's fees and expenses can be classified as a disbursement recouped before distributing the recovery, and whether that treatment must be addressed in the retainer with the decedent's personal representative.

The opinion starts with a key point: the client's death terminates the attorney-client relationship (citing Pace v. Raisman, ABA 95-397, and the Restatement), so to proceed the inquirer must enter a new retainer with the decedent's putative personal representative; the analysis focuses on that second agreement. Whether the deceased client could have bound a future representative is a question of law outside the committee's jurisdiction. On the disbursement question, the Rules do not dictate whether out-of-firm legal services are billed as the lawyer's fee or as a client expense; that is a matter of contract turning on the scope of work the lawyer undertook (citing ABA 00-420). The inquirer and the representative may structure the re-engagement so the inquirer is not responsible for the probate matter and may instead pay and charge back probate counsel's fees as a disbursement, subject to two caveats.

First, the ancillary probate fees must be reasonably incurred to achieve the personal injury litigation's objectives. If the probate proceeding is uncontested, the personal injury claim is the only significant asset, and the application seeks only limited letters to continue the action, those fees are ancillary and chargeable (citing N.Y. State 769 and N.Y. County 739); but fees for unrelated estate matters (a will contest, disputes among heirs, asset management, creditor claims) would not be. Second, the charge must not be an excessive fee or expense under Rule 1.5 and must comply with the Appellate Division contingent-fee limits in personal injury actions (22 NYCRR §§ 603.25(e), 691.20(e), 806.27(a), 1015.15(a)). On disclosure, Rule 1.5(b) requires communicating the scope and basis of fees and expenses, and Rule 1.5(c) requires a contingent-fee writing that clearly notifies the client of expenses for which the client will be liable. Drawing on N.Y. County 739, the committee concludes probate counsel's fees may be charged as a disbursement only if the new retainer with the personal representative, in addition to authorizing retention of probate counsel and continuation of the action, clearly so provides.

In practice

Under this opinion, a New York personal injury lawyer whose client dies mid-case may charge the fees of separately retained probate counsel as a disbursement in the personal injury action, provided those fees are reasonably incurred to continue that action, are not excessive under Rule 1.5, and comply with the Appellate Division contingent-fee caps. Per the opinion, this depends on entering a new retainer with the decedent's personal representative (the original relationship ended at death) that clearly notifies the client the probate fees will be charged as a disbursement; fees for unrelated estate matters such as a will contest or creditor disputes are not chargeable as disbursements in the personal injury action.

Common questions

Q: Does the original retainer survive the client's death?

A: No. Per the opinion, the client's death terminates the attorney-client relationship, so the lawyer must enter a new retainer with the decedent's personal representative to continue the personal injury action.

Q: Can probate counsel's fees be charged to the client as a disbursement?

A: Yes, within limits. Per the opinion, they may be a disbursement if reasonably incurred to continue the personal injury action (for example, an uncontested probate seeking only limited letters) and not excessive under Rule 1.5.

Q: When are the probate fees not chargeable as a disbursement?

A: Per the opinion, fees for matters unrelated to continuing the personal injury action, such as a will contest, disputes among heirs, asset management, or creditor claims, are not ancillary and may not be charged as a disbursement.

Q: Does the retainer have to address this?

A: Yes. Per the opinion, under Rule 1.5(b)-(c) and N.Y. County 739, the new retainer with the personal representative must clearly provide that probate counsel's fees and expenses will be charged as a disbursement.

Background and rules framework

The opinion interprets Rule 1.5 (reasonable fees, the written-disclosure requirement in 1.5(b), and the contingent-fee writing in 1.5(c)) and Rule 1.1 (competence), against the Appellate Division contingent-fee limits in personal injury actions. These correspond to ABA Model Rules 1.5 and 1.1.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.5(b), 1.5(c), 1.5(g), 1.1
• ABA Model Rules 1.5, 1.1 (analogues)

Statutes:

• N.Y. CPLR § 1015(a); 22 NYCRR §§ 603.25(e), 691.20(e), 806.27(a), 1015.15(a) (contingent-fee limits)

Cases:

• Pace v. Raisman & Assoc., 945 N.Y.S.2d 118 (App. Div. 2d Dep't 2012); Davis v. Cohen & Gresser LLP, 51 Misc. 3d 1203(A) (Sup. Ct. N.Y. Co. 2016), death terminates the relationship

Other opinions cited:

• ABA Formal Op. 95-397; ABA Formal Op. 00-420: representative's authority after death; contract lawyer billing
• N.Y. State 769 (2003); N.Y. County 739 (2008): charging ancillary legal services as a disbursement

See also

• NY State Bar Op. 1229: A Lawyer's Duties After the Death of a Client
• NY State Bar Op. 1245: Minimum-Fee Clauses
• NY State Bar Op. 1244: Referral Fees Paid to Retired Lawyers

Source

• Landing page: https://nysba.org/ethics-opinion-1211/