Law Lessons from IN THE MATTER OF THE PROBATE OF THE ALLEGED WILL OF GABRIELA SIPKO, DECEASED, App. Div., A-3622-08T1, March 8, 2010:

Although New Jersey follows the American rule which generally disfavors the shifting of attorneys’ fees, a prevailing party can recover fees in limited circumstances if they are expressly provided for by statute, court rule, or contract. Litton Indus. v. IMO Indus., 200 N.J. 372, 401 (2009). Rule 4:42-9(a)(3) recognizes the appropriateness of an award of counsel fees in a probate action. The rule states in relevant part:

if probate is refused, the court may make an allowance to be paid out of the estate of the decedent. If the probate is granted, and it shall appear that the contestant had reasonable cause for contesting the validity of the will or codicil, the court may make an allowance to the proponent and the contestant, to be paid out of the estate.

[Id.]

The decision to award attorneys’ fees and the quantum of the award, rests within the discretion of the trial judge, and we must review the award under the abuse of discretion standard. IMO Probate of Alleged Will of Hughes, 244 N.J. Super. 322, 328 (1990) (citing In re Reisdorf, 80 N.J. 319, 326-27 (1979)); Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001).

“In determining the reasonableness of a counsel fee award, the threshold issue ‘is whether the party seeking the fee prevailed in the litigation.’” Packard-Bamberger, supra, 167 N.J. at 444 (quoting North Bergen Rex Transp., Inc, v. Trailer Leasing Co., 158 N.J. 561, 570 (1999)).

Rule 4:42-9(b) requires that in an action for counsel fees in probate actions, all applications must “be supported by an affidavit of services addressing the factors enumerated by RPC 1.5(a).” Further, “[t]he affidavit shall also include a recitation of other factors pertinent in the evaluation of the services rendered, the amount of the allowance applied for, and an itemization of disbursements for which reimbursement is sought.” R. 4:42-9(b).

Rule of Professional Conduct 1.5(a) “commands that ‘[a] lawyer’s fee shall be reasonable’ in all cases, not just feeshifting cases,” and requires courts to consider:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent.

[RPC 1.5(a).]

In calculating the dollar amount, courts use the lodestar method of calculation in many settings, including probate actions. Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004); Packard-Bamberger, supra, 167 N.J. at 445 (citing In re Estate of Reisen, 313 N.J. Super. 623 (Ch. Div. 1998)). The lodestar calculation is defined as the number of hours reasonably expended by the attorney, multiplied by a reasonable hourly rate. Furst, supra, 182 N.J. at 21.

In addition, courts should consider other relevant factors when determining the quantum of the fee. Packard-Bamberger, supra, 167 N.J. at 445. For example, the trial court should consider “the interest to be vindicated in the context of the statutory objectives, as well as any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel’s efforts.” Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 366-67 (1995). Furthermore, “[i]f the trial court concludes that the hours expended by counsel ‘exceed those that competent counsel would have expended to achieve a comparable result, a trial court may exercise its discretion to exclude excessive hours from the lodestar calculation.’” Packard-Bamberger, supra, 167 N.J. at 446 (quoting Rendine v. Pantzer, 141 N.J. 292, 336 (1995)).

Our Supreme Court has noted that “fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion.” Id. at 444. The decision to award attorneys’ fees at all, and the amount awarded are accorded great deference.

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