When a lawyer is appointed guardian of an incompetent person, can the lawyer also charge the ward's estate for legal services as attorney for the guardian?

Plain-English summary

Opinion E-80-14 asked whether an attorney appointed as guardian of an incompetent person may charge for services rendered as attorney for the guardian. The committee concluded that it is not improper for an attorney to serve in the dual capacity of guardian and attorney for the guardian.

On fees, the committee relied on Wis. Stat. sec. 880.24(1), under which a guardian is allowed reasonable expenses, including necessary attorney's compensation, plus such compensation for the guardian's own services as the settling court deems just and reasonable. No Wisconsin statute or case directly addressed charging when one person performs both roles, so the committee found the dual-role charges not prohibited, while noting the statute implicitly provides court supervision of both the necessity of the attorney's services and the amount allowed. It cited Guardianship of Schott, 23 Wis. 2d 213, 127 N.W.2d 19 (1964), and Guardianship of Messer, 242 Wis. 66, 7 N.W.2d 584 (1943), for the principle that the necessity and amount of a guardian's and attorney's fees are determined by the supervising court, with no fixed schedule. It also drew on ABA Informal Opinion 863 (1965), which stressed the duty of both the appointing judge and counsel to protect an incompetent client and the attorney's special duty not to overreach. The committee concluded that neither the dual role nor the collection of legal fees while serving as guardian is prohibited under Wisconsin law, but that the situation places an ethical burden on the lawyer to accept only a reasonable fee for all services; the key question is whether accepting both the attorney's fee and the guardian's fee makes the total compensation excessive, and the reasonableness of the fees collected is subject to court approval.

Currency note

This opinion was issued in 1980, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code provision on fees and the guardianship statute cited in the opinion. The reasonableness of lawyer fees is now governed by SCR 20:1.5 / Model Rule 1.5. The guardianship provisions cited (then Wis. Stat. ch. 880) have since been recodified. 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 lawyer be both the guardian and the attorney for the guardian?

A: Yes. The committee concluded it is not improper for an attorney to serve in that dual capacity.

Q: Can the lawyer charge the ward's estate for legal work on top of a guardian's fee?

A: Yes, the committee concluded, because neither the dual role nor charging for legal services is prohibited under Wisconsin law, but the total compensation must not be excessive.

Q: Who decides whether the combined fees are reasonable?

A: The committee said the reasonableness of the fees collected is subject to the approval of the supervising court.

Background and rules framework

The opinion applied the former Wisconsin rule against clearly excessive fees (SCR 20.12) together with the guardianship-fee statute (Wis. Stat. sec. 880.24(1)) and Wisconsin case law on court-supervised guardian and attorney fees. The current counterpart is the fee-reasonableness rule (SCR 20:1.5 / Model Rule 1.5).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.12 (illegal or clearly excessive fee) (former Code)
• Model Rule 1.5 (reasonableness of fees)

Statutes:

• Wis. Stat. sec. 880.24(1) (guardian's reasonable expenses, attorney's compensation, and guardian's fee, subject to court approval)

Cases:

• Guardianship of Schott, 23 Wis. 2d 213, 127 N.W.2d 19 (Wis. 1964), court determination of necessity and amount of attorney's fees
• Guardianship of Messer, 242 Wis. 66, 7 N.W.2d 584 (Wis. 1943), no fixed schedule; court sets just and reasonable guardian's fees

Other opinions cited:

• ABA Informal Opinion 863 (1965): duty to protect an incompetent client and not to overreach on fees

See also

• WI Ethics Op. E-82-5: Contingent Fees and Client Control of Settlement
• WI Ethics Op. E-83-15: Blanket Fee for Insurance Defense Cases
• WI Ethics Op. E-90-4: Interest Charges on Delinquent Accounts

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-80-14.pdf