The Florida Bar

March 25, 1964

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.

[Revised: 08-24-2011]