Probate coordinators - ethical considerations

Ethical Considerations When Outsourcing the Search for Local Probate Counsel

By: Thomas P. Gressette, Jr., Richardson, Patrick, Westbrook & Brickman, LLC

Trial attorneys involved in mass tort litigation often represent clients from all over the United States. Even if many of these lawyers are licensed to practice in multiple jurisdictions, their areas of expertise rarely extend to the specialized field of probate law. These attorneys must choose whether they will familiarize themselves with local probate codes or if they prefer to locate and retain local probate counsel. Generally, the latter option is more attractive as it should lessen the burden on the trial lawyer, ensure the client has adequate probate representation and protect both the trial attorney and the client from potential liability for noncompliance with the local probate court’s procedural or disbursement requirements. However, without a personal relationship or a reference from another attorney, trial lawyers are often left with no choice but to randomly select local probate counsel and hope for the best.

Trial lawyers seeking reliable local probate counsel now have the option of hiring a “probate coordinating service” to assist them in locating and retaining probate counsel. For a set fee, a probate coordinating service acts on behalf of a tort lawyer to identify local probate counsel in a given jurisdiction. Unfortunately, the Model Rules of Professional Conduct do not specifically address whether this additional cost is a necessary expense that can be properly passed on to the client or whether it should be classified as overhead which must be paid from litigation counsel’s contingent fee. However, as this practice tip will explain, there is ample support for the conclusion that when litigation counsel pays a probate coordinator’s fees for assistance in locating probate counsel, those charges can properly be classified as a necessary expense and therefore passed on to the client.

Among the tips included in this pamphlet are:

  •  What support exists for the proposition that probate coordinator’s fees for assistance in locating probate counsel are a necessary expense which can properly be passed on to the client?
  •  What steps must be taken to ensure compliance with the Model Rules of Professional Conduct when outsourcing the search for local probate counsel?
  •  Do ABA Ethics opinions provide any guidance on this issue?
  •  What benefits do probate coordination services provide in terms of ensuring prompt and competent representation of the client’s best interests?

Posted with Permission from South Carolina Association for Justice, September 2010