Can a lawyer for the petitioner in a guardianship proceeding accept a fee from the petitioner on top of the fee the court awards from the incapacitated person's assets?
Apply this to your situation
This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
Under Article 81 of the Mental Hygiene Law, an interested party may petition for appointment of a guardian for an incapacitated person, and the court may award the petitioner's counsel reasonable fees payable from the incapacitated person's assets. The committee was asked whether the Code permits an attorney retained by the petitioner to accept fees from the petitioner in addition to any court award.
The committee anchored the analysis in DR 2-106(A) and (B), which bar excessive fees and list the factors for assessing reasonableness (time and labor, novelty and difficulty, preclusion of other work, the customary local fee, the amount involved and results obtained, time limits, the client relationship, and whether the fee is fixed or contingent). It explained that the reasonableness review must take in all compensation for the services, so where there is both a court award and a payment by the petitioner, the total must be weighed against those factors.
On the propriety of the dual fee itself, the committee said whether accepting a separate fee from the petitioner in addition to the court award violates a law, court rule, or court order is a question beyond its jurisdiction. If accepting the fee is unlawful or violates a rule or order, it would also be unethical under DR 1-102(A)(5), DR 1-102(A)(8), DR 2-106(A), and DR 7-102(A)(8). If it is lawful, the committee saw no ethical bar to accepting both, provided the total is not excessive. Finally, the lawyer must consider disclosing the fee arrangement to the court before it fixes its award, and must decide whether, on the particular facts, a failure to disclose would be deceitful or misleading under DR 1-102(A)(4).
Currency note
This opinion was issued in 1997, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a guardianship lawyer be paid by both the petitioner and the court?
A: The opinion concluded yes, if accepting the petitioner's fee is lawful and the combined fee is not excessive under DR 2-106.
Q: How is excessiveness measured when there are two sources of payment?
A: The opinion required the lawyer to include all compensation for the services and weigh the total against the DR 2-106(B) reasonableness factors.
Q: Does the lawyer have to tell the court about the petitioner's fee?
A: The opinion concluded the lawyer must consider disclosing the arrangement to the court before it fixes its award, and that non-disclosure could be deceitful or misleading under DR 1-102(A)(4) depending on the facts.
Background and rules framework
The opinion interpreted DR 2-106(A) and (B) (excessive fees and reasonableness factors), together with DR 1-102(A)(4), (5), and (8) and DR 7-102(A)(8) (dishonesty, conduct prejudicial to the administration of justice, conduct reflecting on fitness, and illegal conduct in representation) of New York's former Code. The Model Rule analogues are Rule 1.5 (fees) and Rule 8.4 (misconduct). The fee award itself arose under Mental Hygiene Law section 81.16(f). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.5 (fees; reasonableness)
- MR 8.4 (misconduct; dishonesty)
- NY DR 2-106(A), (B); DR 1-102(A)(4), (5), (8); DR 7-102(A)(8)
Statutes:
- N.Y. Mental Hygiene Law section 81.16(f) (court award of fees to petitioner's counsel)
Cases:
- In re Sherbunt, 134 A.D.2d 723 (3d Dep't 1987), fee reasonableness factors
See also
- NY State Bar Op. 697: Combined hourly and contingency fee
- NY State Bar Op. 698: Contingent fee for a medical consultant
- NY State Bar Op. 729: Interest on disbursements in contingency cases
Source
- Landing page: https://nysba.org/opinion-689/
Get today's answer for your situation
You just read a 1997 opinion on this question. Ezel checks the current New York Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.