Affidavit of Attorneys Fees

Affidavit Form

Affridavit of Attorneys Fees

Procedures

Applies 2 guardianships, conservatorships,  probates and trust administrations, all where fees are coming from the estate and the fiduciary is asking the court to approve an accounting.

 

The party requesting the attorneys fees must supply a copy of the affidavit to each party in the case, and to all persons who have requested to be noticed as to fees.

 

The affidavit of attorneys fees must contain a reconcilliation so that the amount of attorney's fees matches the amount of fees claimed to have been paid to the attorney during the accounting period. 

Law before September 1 2012

Rule 33 of the Arizona Rules of Probate Procedure before September 1, 2012:

 

A. Unless otherwise ordered by the court, a petition that requests approval of compensation for a personal representative, trustee, guardian, conservator, guardian ad litem, attorney representing such fiduciary, or an attorney representing the subject person in a guardianship or conservatorship proceeding for services rendered in proceedings under A.R.S. Title 14 shall be accompanied by a statement that includes the following information:

1. If compensation is requested based on hourly rates, a detailed statement of the services provided, including the tasks performed, the date each task was performed, the time expended in performing each task, the name and position of the person who performed each task, and the hourly rate charged for such services;

2. An itemization of costs for which reimbursement is sought that identifies the cost item, the date the cost was incurred, the purpose for which the expenditure was made, and the amount of reimbursement requested, or, if reimbursement of costs is based on some other method, an explanation of the method being used for reimbursement of costs; and

3. If compensation is not based on hourly rates, an explanation of the fee arrangement and computation of the fee for which approval is sought.

B. Copies of all petitions for compensation and fee statements shall be provided to or served on each party and person who has appeared or requested notice in the case. Proof of such service shall be filed with the court.

C. If a petition for compensation or fees is contested, the objecting party shall set forth all specific objections in writing, and a copy of such written objections shall be given to or served on each party and person who has appeared or requested notice in the case. Proof of service or delivery of such notice shall be filed with the court.

D. When an attorney or fiduciary fee statement accompanies an annual accounting, the fee statement shall match the charges reported in the annual accounting or a reconciliation of the fee statement to the accounting shall be provided by the fiduciary.

E. The superior court may adopt fee guidelines designating compensation rates that may be used in determining the reasonableness of fees payable to licensed fiduciaries in cases under A.R.S. Title 14.

F. Unless ordered by the court, neither a personal representative nor a personal representative's attorney is required to file a petition for approval of such person's fees.

CREDIT(S)

Added Sept. 16, 2008, effective Jan. 1, 2009. Amended Sept. 2, 2010, effective Jan. 1, 2011.

COMMENT

This rule is not intended to require court approval of fiduciary fees or attorneys' fees in all circumstances. Instead, this rule clarifies that if approval of fees is requested, the court may require that certain information be provided to assist the court in determining the reasonableness of the fees. In many circumstances, especially with respect to decedents' estates and trusts, court approval of fiduciary fees and attorneys' fees is not required unless an interested person specifically requests that the court review the reasonableness or propriety of compensation paid to a fiduciary or attorney. See, e.g., A.R.S. § 14-3721.

When a fiduciary asks the court to approve an accounting, the fiduciary necessarily is asking the court to approve, among other things, all the disbursements made by the fiduciary during the accounting period, including any fiduciary or attorney fees paid during the accounting period. Consequently, when a fiduciary files a petition requesting approval of the fiduciary's accounting, the burden is on the fiduciary to supply the information required by Rule 33(A), not just with respect to the fiduciary's fees but also with respect to all fiduciary and attorney fees paid during the accounting period. Pursuant to Rule 33(D), in such cases, the fiduciary should supply fee statements that match the disbursements reported in the accounting. The fee statements may take the form of the invoices paid during the accounting period so long as those invoices contain the information required by Rule 33(A).

A.R.S. § 14-5651 limits the classes of persons or entities who are entitled to receive compensation for acting as a guardian, a conservator, or a personal representative.

This rule is not intended to apply when a party has requested that the court award the party attorneys' fees against another party, such as an award of sanctions or an award of attorneys' fees in a matter arising out of contract. Instead, this rule applies only to those circumstances in which a fiduciary or an attorney seeks compensation from the estate of a ward or protected person, a decedent's estate, or a trust.

Pursuant to Rule 7(A), fee statements are not confidential documents or information.

In assessing whether compensation paid to or requested by a fiduciary or an attorney is reasonable, the court should consider a variety of factors, not just the amount of time spent on a particular task. See Schwartz v. Schwerin, 85 Ariz. 242, 245-46, 336 P.2d 144, 146 (1959) (holding that in determining the reasonableness of attorneys' fees, the court should not give undue weight to any one factor). For example, when reviewing the fiduciary's compensation, the court also should consider the amount of principal and income received and disbursed by the fiduciary, the fees customarily paid to agents or employees for performing like work in the community, the success or failure of the administration of the fiduciary, any unusual skill or experience that the particular fiduciary may have brought to the work, the fidelity or disloyalty displayed by the fiduciary, the degree of risk and responsibility assumed by the fiduciary, the custom in the community as to allowances to trustees by settlers or courts and as to fees charged by trust companies and banks, the nature of the services performed in the course of administration (whether routine or involving skill and judgment), and any estimate that the fiduciary has given of the value of the services. See Mary F. Radford, George G. Bogert & George T. Bogert, The Law of Trusts & Trustees § 977 (3d ed. 2006). Similarly, when reviewing the attorney's compensation, the court should consider, among other factors, the attorney's ability, training, education, experience, professional standing, and skill; the character of the work performed by the attorney (its difficulty, intricacy, and importance, time and skill required, and the responsibility imposed); the work actually performed by the attorney (the skill, time, and attention given to the work by the attorney); and the success of the attorney's efforts and the benefits that were derived as a result of the attorney's services. See Schwartz, 85 Ariz. at 245-46, 336 P.2d at 146.

The purpose of requiring a detailed statement of services that describes each task performed, the date each task was performed, the amount of time spent on each task, and the person performing each task is to assist the court in determining whether the amount of time spent on a particular task was reasonable. Such requirement is intended to prevent “block billing,” which occurs when a timekeeper provides only a daily total amount of time spent working on the case rather than an itemization of the time expended on specific tasks. See, e.g., Hawaii Ventures, LLC, v. Otaka, Inc., 173 P.3d 1122, 1132 (Haw. 2007). “Block billing” makes it difficult, if not impossible, for the court to determine the reasonableness of the time spent on a particular task because all the tasks are lumped together in a single entry that provides only a total amount of time spent. Id. That is not to say, however, that the combining of related tasks in a single time entry is prohibited, especially if the time involved for each such task is minimal. For example, if reading an e-mail takes one minute and drafting the response to that e-mail takes four minutes, a single time entry of one-tenth of an hour for both tasks is more appropriate than two time entries of one-tenth of an hour each. Thus, lawyers and fiduciaries should exercise “billing judgment” when writing time entries to ensure that the court can determine whether the time expended was reasonable.

 

Rule After September 1 2012

A. A guardian, conservator, attorney or guardian ad litem who intends to be compensated by the estate of a ward or protected person shall give written notice of the basis of any compensation as required by Arizona Revised Statutes Section 14-5109.

B. Unless otherwise ordered by the court, a petition that requests approval of compensation for a personal representative, trustee, guardian, conservator, guardian ad litem, attorney representing such fiduciary, or an attorney representing the subject person in a guardianship or conservatorship proceeding for services rendered in proceedings under A.R. S. Title 14 shall be accompanied by a statement that includes the following information:

1. If compensation is requested based on hourly rates, a detailed statement of the services provided, including the tasks performed, the date each task was performed, the time expended in performing each task, the name and position of the person who performed each task, and the hourly rate charged for such services;

2. An itemization of costs for which reimbursement is sought that identifies the cost item, the date the cost was incurred, the purpose for which the expenditure was made, and the amount of reimbursement requested, or, if reimbursement of costs is based on some other method, an explanation of the method being used for reimbursement of costs; and

3. If compensation is not based on hourly rates, an explanation of the fee arrangement and computation of the fee for which approval is sought.

C. Copies of all petitions for compensation and fee statements shall be provided to or served on each party and person who has appeared or requested notice in the case. Proof of such service shall be filed with the court.

D. If a petition for compensation or fees is contested, the objecting party shall set forth all specific objections in writing, and a copy of such written objections shall be given to or served on each party and person who has appeared or requested notice in the case. Proof of service or delivery of such notice shall be filed with the court.

E. When an attorney or fiduciary fee statement accompanies an annual accounting, the fee statement shall match the charges reported in the annual accounting or a reconciliation of the fee statement to the accounting shall be provided by the fiduciary

F. When determining reasonable compensation, the superior court shall follow the statewide fee guidelines set forth in the Arizona code of judicial administration.

G. Unless ordered by the court, neither a personal representative nor a personal representative's attorney is required to file a petition for approval of such person's fees.

H. Compensation payable to attorneys or guardians ad litem from the estate of a ward or protected person is waived if not submitted in compliance with Arizona Revised Statutes, Section 14-5110.

CREDIT(S)

Added Sept. 16, 2008, effective Jan. 1, 2009. Amended Sept. 2, 2010, effective Jan. 1, 2011; Dec. 13, 2011 (corrected nunc pro tunc Dec. 22, 2011), effective Sept. 1, 2012.

COMMENT

This rule is not intended to require court approval of fiduciary fees or attorneys' fees in all circumstances. Instead, this rule clarifies that if approval of fees is requested, the court may require that certain information be provided to assist the court in determining the reasonableness of the fees. In many circumstances, especially with respect to decedents' estates and trusts, court approval of fiduciary fees and attorneys' fees is not required unless an interested person specifically requests that the court review the reasonableness or propriety of compensation paid to a fiduciary or attorney. See, e.g., A.R.S. § 14-3721.

When a fiduciary asks the court to approve an accounting, the fiduciary necessarily is asking the court to approve, among other things, all the disbursements made by the fiduciary during the accounting period, including any fiduciary or attorney fees paid during the accounting period. Consequently, when a fiduciary files a petition requesting approval of the fiduciary's accounting, the burden is on the fiduciary to supply the information required by Rule 33(A), not just with respect to the fiduciary's fees but also with respect to all fiduciary and attorney fees paid during the accounting period. Pursuant to Rule 33(D), in such cases, the fiduciary should supply fee statements that match the disbursements reported in the accounting. The fee statements may take the form of the invoices paid during the accounting period so long as those invoices contain the information required by Rule 33(A).

A.R.S. § 14-5651 limits the classes of persons or entities who are entitled to receive compensation for acting as a guardian, a conservator, or a personal representative.

This rule is not intended to apply when a party has requested that the court award the party attorneys' fees against another party, such as an award of sanctions or an award of attorneys' fees in a matter arising out of contract. Instead, this rule applies only to those circumstances in which a fiduciary or an attorney seeks compensation from the estate of a ward or protected person, a decedent's estate, or a trust.

Pursuant to Rule 7(A), fee statements are not confidential documents or information.

In assessing whether compensation paid to or requested by a fiduciary or an attorney is reasonable, the court should consider a variety of factors, not just the amount of time spent on a particular task. See Schwartz v. Schwerin, 85 Ariz. 242, 245-46, 336 P.2d 144, 146 (1959) (holding that in determining the reasonableness of attorneys' fees, the court should not give undue weight to any one factor). For example, when reviewing the fiduciary's compensation, the court also should consider the amount of principal and income received and disbursed by the fiduciary, the fees customarily paid to agents or employees for performing like work in the community, the success or failure of the administration of the fiduciary, any unusual skill or experience that the particular fiduciary may have brought to the work, the fidelity or disloyalty displayed by the fiduciary, the degree of risk and responsibility assumed by the fiduciary, the custom in the community as to allowances to trustees by settlers or courts and as to fees charged by trust companies and banks, the nature of the services performed in the course of administration (whether routine or involving skill and judgment), and any estimate that the fiduciary has given of the value of the services. See Mary F. Radford, George G. Bogert & George T. Bogert, The Law of Trusts & Trustees § 977 (3d ed. 2006). Similarly, when reviewing the attorney's compensation, the court should consider, among other factors, the attorney's ability, training, education, experience, professional standing, and skill; the character of the work performed by the attorney (its difficulty, intricacy, and importance, time and skill required, and the responsibility imposed); the work actually performed by the attorney (the skill, time, and attention given to the work by the attorney); and the success of the attorney's efforts and the benefits that were derived as a result of the attorney's services. See Schwartz, 85 Ariz. at 245-46, 336 P.2d at 146.

The purpose of requiring a detailed statement of services that describes each task performed, the date each task was performed, the amount of time spent on each task, and the person performing each task is to assist the court in determining whether the amount of time spent on a particular task was reasonable. Such requirement is intended to prevent “block billing,” which occurs when a timekeeper provides only a daily total amount of time spent working on the case rather than an itemization of the time expended on specific tasks. See, e.g., Hawaii Ventures, LLC, v. Otaka, Inc., 173 P.3d 1122, 1132 (Haw. 2007). “Block billing” makes it difficult, if not impossible, for the court to determine the reasonableness of the time spent on a particular task because all the tasks are lumped together in a single entry that provides only a total amount of time spent. Id. That is not to say, however, that the combining of related tasks in a single time entry is prohibited, especially if the time involved for each such task is minimal. For example, if reading an e-mail takes one minute and drafting the response to that e-mail takes four minutes, a single time entry of one-tenth of an hour for both tasks is more appropriate than two time entries of one-tenth of an hour each. Thus, lawyers and fiduciaries should exercise “billing judgment” when writing time entries to ensure that the court can determine whether the time expended was reasonable.

Supreme Ct Fee Guidelines

http://www.azcourts.gov/probate/FeeGuidelines.aspx