Can a lawyer set a fee in advance for handling a client's estate through a provision in the will or a separate agreement?

Plain-English summary

A member had been retained to prepare a client's will leaving the property to two nonresident children designated as joint executors. The estate's gross probate value would exceed $100,000, the assets were almost entirely liquid, and only limited probate work was expected. The client asked the lawyer to handle the estate and represent the executors, although the lawyer was not known to them, and wanted to set the lawyer's fee presently under a binding agreement inserted in the will or covered by a separate agreement. The member asked whether this raised any ethics violation.

The committee was unanimous that no ethics question was presented. The lawyer could make whatever fee arrangement might be reasonable under the circumstances, was under no duty to fix fees in advance, and would be justified in naming a fee large enough to cover the complexities that might reasonably arise. The committee added, on the legal side, that there was considerable doubt whether a will provision on fees would be valid, because the joint executors have the right to select counsel of their own choosing, and that a contract might have no legal effect except perhaps to work an estoppel against a later claim for larger fees. It suggested it might be well to advise the client that entering such a contract could lack wisdom from the client's viewpoint, and it emphasized that its authority is limited to the ethical, not legal, aspects.

Currency note

This opinion was issued in 1964, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 12 of the Canons of Professional Ethics; lawyer fees are now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5). Subsequent rule amendments or later opinions may have changed the analysis, and current fee rules impose their own reasonableness factors and writing requirements not discussed here. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Is it ethical to agree on an estate fee before the work is done?

A: Yes. The committee found no ethics question in setting a reasonable fee in advance by will provision or separate agreement; the lawyer is also free not to fix the fee in advance.

Q: Does a fee set in the will bind the executors?

A: The committee doubted it. It noted the joint executors have the right to choose their own counsel, so a will provision or contract on fees might have little legal effect beyond possibly estopping a later claim for a larger fee. The committee stressed this was a legal observation outside its ethics authority.

Background and rules framework

The opinion applied former Canon 12 (fixing the amount of the fee) of the Canons of Professional Ethics. Lawyer fees are now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5). The committee confined its holding to the ethics question (whether a pre-set reasonable fee is proper) and flagged, without deciding, the separate legal question of enforceability against executors who may choose their own counsel.

Citations and references

Rules of Professional Conduct:

• Canon 12 [Canons of Professional Ethics; fixing the amount of the fee; see current Rule 4-1.5]

See also

• FL Bar Ethics Op. 65-34: Billing a Buyer Without an Agreement
• FL Bar Ethics Op. 64-58: Nominal-Fee Work for a Savings and Loan

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-64-15/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-64-15.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 64-15
March 25, 1964
Advisory ethics opinions are not binding.
It is ethically permissible for an attorney to set his fee for handling a client's estate with a client under a binding agreement to be inserted in the client's will or covered by separate agreement.
Canon: 12
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar states that a client has retained him to prepare his will in which he leaves all of his property to two non-resident children who are designated as joint executors. The estate will have a gross value for probate purposes in excess of $100,000, the assets are almost entirely liquid, and a limited amount of probate work would be involved. The client has asked the lawyer to handle the estate and represent the executors although he is not known to them. The client wishes him to set a fee with him presently under a binding agreement to be inserted in the will or covered by separate agreement. He inquires whether a violation of professional ethics is indicated.
It is the unanimous opinion of our Committee that no question of ethics is presented. We feel the lawyer can make such arrangement regarding his fee as might be reasonable under the circumstances. Certainly, however, he is under no duty to fix his fees in advance and he would be justified in naming a fee large enough to cover all of the complexities which might reasonably be expected to arise. There is considerable doubt whether a provision in the will regarding fees would have validity since the joint executors have the right to select counsel of their own choosing. Similarly, a contract might have no legal efficacy except perhaps to work an estoppel against a later claim for larger fees. Before making any agreement with the client, it might be well to suggest there may be a lack of wisdom in entering into such a contract from the viewpoint of the client.
Portions of this opinion refer to matters which are legal in nature. Our authority is limited to the ethical matters only and our opinions are purely advisory.