Can a Washington lawyer charge a probate fee set as a percentage of the estate's value and split it with another lawyer?

Plain-English summary

The committee reviewed a proposed fee for probating an estate that was to be set as a percentage of the estate's value. It concluded that this arrangement would not be a contingent fee but rather a fee based solely on a percentage of the value of the estate.

The committee identified two requirements. Before entering into any such fee-splitting agreement, the lawyer would have to comply with RPC 1.5(e), which governs the sharing of fees between lawyers. In addition, the amount of the fee would have to be reasonable as defined in RPC 1.5(a). The committee also directed attention to the then-recent decision in Estate of Larson.

Currency note

This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. RPC 1.5 was later renumbered and amended, and the fee-division and reasonableness requirements were rewritten. Treat this page as historical context, not current guidance.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: Is a probate fee set as a percentage of the estate's value a contingent fee?

A: No. The committee concluded that the proposed arrangement would not be a contingent fee but rather a fee based solely upon a percentage of the value of the estate.

Q: What did the lawyer have to do before splitting the fee with another lawyer?

A: The committee said that, before entering any such fee-splitting agreement, the lawyer would have to comply with RPC 1.5(e), which governs the sharing of fees between lawyers.

Q: Was the percentage fee subject to any limit?

A: Yes. The committee said the amount of the fee must be reasonable as defined in RPC 1.5(a).

Background and rules framework

The opinion interprets Washington RPC 1.5 as it stood in 1986 (corresponding to Model Rule 1.5 on fees). It applies RPC 1.5(e), governing the division of fees between lawyers, and RPC 1.5(a), requiring that the fee be reasonable, to a proposed percentage-of-estate fee for probate work. The committee directed attention to Estate of Larson, 103 Wn.2d 517, 694 P.2d 1051 (1985).

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.5(a) (reasonableness of fees), corresponding to Model Rule 1.5(a).
• Washington RPC 1.5(e) (division of fees between lawyers), corresponding to Model Rule 1.5(e).

Cases:

• Estate of Larson, 103 Wn.2d 517, 694 P.2d 1051 (Wash. 1985), cited by the committee on attorney fees in the administration of an estate.

See also

• WSBA Ethics Op. 941: division of fees between different firms
• ABA Formal Op. 487: fee division with a client's prior counsel
• ABA Formal Op. 475: safeguarding fees subject to division

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=72

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 961
Year Issued: 1986
RPC(s): RPC 1.5(a); 1.5(e)
Subject: Attorney fee; fee for probating estate as percentage of value of estate; division of fees

Upon reviewing your inquiry, the Committee was of the opinion the proposed fee arrangement as presented by you would not be a contingent fee but rather would be a fee based solely upon a percentage of the value of the estate. The Committee was of the opinion that prior to entering into any such fee splitting agreement, you would have to comply with RPC 1.5(e) regarding the sharing of fees between lawyers, and in addition, the amount of the fee must be reasonable as defined in RPC 1.5(a). The Committee asked that I direct your attention to the recent case of Estate of Larson, 103 Wn.2d 517, 694 P.2d 1051 (1985).