Liens for Attorney Fees, Probate: 4/3 DCA Affirms Probate Court’s Denial Of Fee Petition By Attorney Who Represented Client In Civil Litigation Prior To Client’s Death

Client’s Death Did Not Transform Completed Civil Litigation Into A Probate Administration Task For Which The Probate Court Could Award Fees, Nor Did Client’s Death Waive Requirement That Attorney’s Charging Lien Had To Be Adjudicated.

            In Belcher v. Bakkers, Case No. G058893 (4^th Dist., Div. 3 April 5, 2021) (unpublished), attorney seeking payment of fees and costs, for services rendered in civil litigation prior to his client’s death, filed a petition for payment in probate court.  The trial court denied the petition – concluding the legal services were rendered before client’s death and were not services to the probate estate – and found the proper form for recovering fees owed to attorney from client’s estate was a creditor’s claim (a claim attorney had also filed, but was yet unresolved pending the appointment of a special administrator to the estate).

            Attorney appealed, but the 4/3 DCA, in a 3-0 opinion authored by Justice O’Leary, affirmed.

            Attorney’s argument that his fee petition was the proper mechanism for seeking fees because the trial court authorized fees payments to two other attorneys overlooked the fact that those fees were incurred by client’s conservator and guardian ad litem and were specifically authorized by Prob. Code § 2631(a).

            Attorney also argued, for the first time on appeal, that his contingency fee agreement with client created an attorney charging lien and the trial court’s conclusion that attorney had to file a creditor’s claim for payment of his fees/costs failed to consider his status as a lienholder.  However, an attorney charging lien is only effective if the attorney has filed an independent action – such as a declaratory relief action – to establish the lien’s amount and enforceability.  (Mojtahedi v. Vargas, 228 Cal.App.4th 974 (2014) [reviewed in our July 13, 2014 post].) Here, the lien’s amount and enforceability had not been adjudicated as client died before attorney was able to file a separate, independent action for such determination. As such, the proper avenue for adjudicating the lien’s amount and enforceability was for attorney to file a creditor’s claim.