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Harrington v. Lord
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 201
Docket: 	Kno-96-839
Argued:	September 5, 1997
Decided:	October 7, 1997

Panel:		WATHEN, C.J., and ROBERTS, RUDMAN, DANA, and LIPEZ, JJ.



H. HARVEY HARRINGTON v. RICHARD A. LORD

RUDMAN, J.

	[¶1]  Richard A. Lord appeals from the judgment entered in the
Superior Court (Knox County, Marsano, J.) confirming an Award and
Determination entered by a Panel of the Fee Arbitration Commission of the
Board of Overseers of the Bar in favor of H. Harvey Harrington.  Lord
contends that the Fee Arbitration Commission lacked subject matter
jurisdiction to render an award in connection with his fee dispute with
Harrington.  We disagree and affirm the judgment confirming the arbitration
award.
	[¶2]  Lord was the scrivener of the will of Laura C. Hines.  In her will,
Hines directed her personal representative "[t]o employ my attorney,
Richard A. Lord of Brunswick, Maine as the attorney for my estate, his fees
to be determined solely by him as to reasonableness."  Harrington, named as
personal representative in the will and residual legatee under the will, hired
Lord to assist in the probate proceedings.  No formal proceedings were
initiated in the probate court concerning the fees charged by Lord.  After
the estate was closed, and Harrington had paid Lord $11,000 of the
$14,000 in attorney fees sought by Lord, Harrington challenged Lord's fees
by filing a petition with the Fee Arbitration Commission of the Board of
Overseers of the Bar pursuant to M. Bar R. 9.  The panel of the Arbitration
Commission found "$2,500.00 to be a reasonable attorney's fee in this case,"
and thus by an Award and Determination ordered Lord to remit $8,500 to
Harrington.  Harrington then sought confirmation of the award by the
Superior Court.
	[¶3]  Lord argues that his attorney fees are ultimately a distribution of
an asset under a will, the disposition of which falls within the exclusive
jurisdiction of the Probate Court.{1}  Lord characterizes the enforcement of
the arbitration award by the Superior Court as an impermissible collateral
attack upon the probate proceedings which worked to abrogate the
testator's intent as expressed in her will.{2}
	[¶4]  Harrington responds that the fee dispute between himself and
Lord falls squarely within the jurisdiction of the Supreme Judicial Court to
control and to regulate attorneys.  He contends that M. Bar R. 9, which
establishes a procedure for arbitration of fees between a client and his
attorney, controls the resolution of such disputes.  Harrington argues that
Rule 9 provides the Fee Arbitration Commission with jurisdiction to resolve
fee disputes and the power to stay court or agency actions involving such
disputes.  We agree.
	[¶5]  The personal representative of an estate often employs an
attorney to assist him or her with procuring the admission of a will to
probate or with settling the estate.  This attorney acts as the attorney of the
personal representative solely, and for his or her services the personal
representative, not the estate, is personally responsible.  See Jones v. Silsby,
61 A.2d 117 (Me. 1948); Christie v. Dold, 524 N.W.2d 866, 870-71 (S.D.
1994) ("An attorney who is employed to probate an estate is not employed
by and does not represent the estate.  Rather, the personal representative . .
. is the client and the attorney represents them as their counsel.")
	[¶6]  Attorney fees between a personal representative and his or her
attorney are a matter of contract -- the personal representative pays the
attorney for services rendered in the administration of the estate.  Christie,
524 N.W.2d at 870.  The attorney's right of compensation for services
rendered to the personal representative is not a direct charge against the
estate, but rather a charge against the personal representative.  See In re
Lachmund's Estate, 170 P.2d 748 (Or. 1946); In re Schwint's Estate, 83
P.2d 161 (Okla. 1938).  The personal representative, while personally
obligated as to this charge, may in turn be reimbursed for such expenses
when the estate is ultimately settled. See 18-A M.R.S.A. § 3-715(21) (1981)
(granting personal representative power to employ attorney to assist in
administration of estate); 18-A M.R.S.A. § 3-720 (1981) (entitling personal
representative to reimbursement for attorney fees incurred in estate
litigation); Christie, 524 N.W.2d at 870.
 	[¶7]  We have specifically stated that attorney fees are subject to court
regulation.  Anderson v. Elliott, 555 A.2d 1042, 1049 (Me. 1989).  Attorneys
are officers of the court and the Supreme Judicial Court has the inherent
authority to define and to regulate their practice of law.   See Me. Const. art.
III,  §2;  art. VI, § 1; In re Feingold, 296 A.2d 492, 496 (Me. 1972).  The
Supreme Judicial Court regulates the practice of law in Maine via the
promulgation and enforcement of the Maine Bar Rules which "govern the
practice of law by attorneys within this State . . . ." M. Bar R. 1(a).
	[¶8]  Attorney-client fee dispute resolution is governed by M. Bar R. 9. 
In Anderson v. Elliott, 555 A.2d 1042 (Me. 1989), we examined the
procedure and policy of attorney-client fee dispute resolution pursuant to M.
Bar R. 9.{3}  We concluded that the "sound administration of justice" requires
"an effective procedure for enforcement of the attorney's professional duty
to charge only a reasonable fee."{4}  Id. at 1049.  Rule 9 responds to the need
to provide both an attorney and the client with a "faster and procedurally
less forbidding forum for fee disputes."  Id.  We recognized that a fee dispute
resolution procedure should be one that can "be used effectively by clients
whose experience with the legal system is likely to be limited and
bewildering, and who in disputes with their own attorneys go into court on
an unequal footing."  Id.
	[¶9]  Evidence that Maine's attorney fee arbitration procedure enjoys
priority and is available prior to a final determination of the fee by a court is
found in Rule 9 itself, which reads in part:

If there is then pending before a court or agency of this State an
action instituted by either petitioner or respondent involving the
disputed fees, then such action shall, upon motion by the
petitioner, be stayed until such dispute is resolved pursuant to
this rule; and the award hereunder shall be determinative of the
action so stayed.  	

M. Bar R. 9(e)(5)(D) (emphasis added).

	[¶10]  Construing a testamentary appointment of an attorney and of his
fee as a testamentary bequest would assume a donee-beneficiary relationship
existed between the testator and the appointed attorney.{5}  It has, however,
been held that: 

[t]he appointment of an attorney for the executor is not a
testamentary act, nor is it a bequest to an attorney.  It is a
provision for the benefit of the persons interested in the estate  
. . . The [attorney holds] no vested interest in the estate, and [the
attorney is] entitled only to an allowance to be fixed in the sound
discretion of the probate court equal to the reasonable value of
the services rendered by him for the estate.

In re Lachmund's Estate, 170 P.2d 748, 756 (Or. 1946) (emphasis added).
	[¶11]  Several reasons dictate that a testamentary designation of
attorney fees not be construed a distribution of assets under the will.  A
personal representative of the estate is subject to surcharge for any
excessive or improper payments out of the estate. 18-A M.R.S.A. § 3-712
(1981) ("If the exercise of power concerning the estate is improper, the
personal representative is liable to interested persons for damage or loss
resulting from the breach of his fiduciary duty. . . ."); see Jones v. Silsby, 61
A.2d 117 (Me. 1948).  Such improper payments out of the estate would
include excessive legal fees.  For that reason, the majority of courts
addressing this issue have held that a personal representative is free to
reject the testator's designation of attorney for the estate.  Christie, 524
N.W.2d at 870-71 ("The selection of the attorney by the decedent is not
binding upon the personal representative because, if the attorney is derelict
in his duties, the personal representative is liable and so he must have the
power to select his or her own attorney."); see In re Estate of Deardoff, 461
N.E.2d 1292, 1293 (Ohio 1984) (noting concurring jurisdictions). 
Accordingly, testamentary language binding a personal representative as to
attorney fees is equally repugnant.  Any other result would leave the personal
representative powerless over a condition (excessive attorney fees) that may
subject the personal representative to a breach of his or her fiduciary duties.
	[¶12]  In the instant case, Lord was hired to provide legal counsel to
assist Harrington in his capacity as personal representative of the Hines'
Estate.{6}  Their relationship was attorney-client and the fees in dispute are
attorney fees for services provided by Lord to Harrington.  As such, their
dispute is precisely the subject matter for which the Supreme Judicial Court
fashioned Rule 9.{7}   The Maine Bar Rules prevail over a procedural statute
when potential inconsistency exists between them.  In re Feingold, 296 A.2d
at 496.  Thus, even assuming a conflict between 18-A M.R.S.A. § 3-721 and
Rule 9, the statutory procedure could not deprive Harrington of his Rule 9
avenue of redress.
	The entry is:
					Judgment affirmed.
 
Attorney for plaintiff: Willard D. Pease, Esq., (orally) Crandall, Hanscom, Pease and Collins, P.A. P O Box 664 Rockland, ME 04841-0664 C. Donald Briggs, III, Esq. Philip P. Mancini, Esq., (orally) Cloutier & Briggs, P.A. 247 Commercial Street Rockport, ME 04856
FOOTNOTES******************************** {1} Lord contends the proper procedure for the review of attorney fees is set forth in 18-A M.R.S.A. § 3-721, which reads in part: After notice to all interested persons, on petition of an interested person . . . the propriety of employment of any person by a personal representative, including the employment of any attorney . . . the reasonableness of the compensation of any person so employed . . . may be reviewed by the court. Any person who has received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds. 18-A M.R.S.A. § 3-721 (1981). {2} Lord cites 18-A M.R.S.A. § 2-603 (1981) ("The intention of a testator as expressed in his will controls the legal effect of his dispositions."). {3} M. Bar R. 9 establishes the mechanism for binding arbitration of attorney-client fee disputes. Proceedings may be initiated by "a complaint from any source regarding legal fees paid to or charged by an attorney admitted to the Bar of this State," and the petitioner must agree to be bound by the Commission's decision. M. Bar R. 9(e)(1). The arbitration proceeding is governed by the Maine Uniform Arbitration Act, 14 M.R.S.A. § 5927, §§ 5929-5949 (1980); M. Bar R. 9(g)(3), 9(i). Under the Act either party may file a motion to confirm the award in a summary proceeding in the Superior Court. 14 M.R.S.A. §§ 5937, 5942 (1980). An opposing party may move to vacate the award, but if the arbitrators have acted within their powers the court must enter judgment on the award absent improper partiality by the arbitrator or fraud, corruption, or misconduct by the parties. 14 M.R.S.A. §§ 5937-5938. {4} M. Bar R. 3.3(a) addresses excessive attorney fees: A lawyer shall not enter into an agreement for, charge, or collect an illegal or excessive fee. A fee is excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. {5} We note M. Bar R. 3.4(f)(2)(iv) provides: A lawyer shall not prepare an instrument giving the lawyer . . . any substantial gift from a client, including a testamentary gift, except where the client is related to the donee. M. Bar R. 3.4(f)(2)(iv). {6} Pursuant to Maine's Probate Code, the personal representative of the estate owes a fiduciary duty to interested parties of the estate. 18-A M.R.S.A. § 703 (1981); see In re Estate of Stowell, 595 A.2d 1022 (Me. 1991). The personal representative is liable to, among others, the beneficiaries of the estate for damage or loss to the estate resulting from the breach of this fiduciary duty. 18-A M.R.S.A. § 3-712 (1981). The personal representative is statutorily empowered to employ others, including attorneys, to "advise or assist the personal representative in the performance of his administrative duties[.]" 18-A M.R.S.A. § 3-715(21) (1981). {7} M. Bar. R. 9 requires the petitioner to certify that the fee dispute has not been "finally adjudicated by a court or administrative agency." M. Bar R. 9(e)(1)(D). In the instant case, no formal proceedings were initiated in the Probate Court concerning the fees charged by Lord.