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Matter of Estate of Garner

Court Adjusts Attorney Fees From 33 1/3% to 25% Only on Portion Going to Infants

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*1  In this pending administration proceeding the next step in moving this matter to conclusion is for the Court to decide if an adjustment is warranted in the percentage attorney’s fee as contained in the one-third retainer agreement. The standard contingency fee retainer agreement in personal injury (wrongful death) litigation is for the plaintiff’s attorneys to receive thirty-three and one third percent (33-1/3 percent) of the recovery after disbursements. The Court on August 2, 2017, when the Second Interim Distribution Decree was signed, gave the attorneys an opportunity to file affirmations regarding their positions on the contingency fee issue. The Guardians Ad Litem (GALs) appointed by the Court to represent the interests of the two minor children involved were directed to include their recommendations in their final reports to the Court. All attorneys have now made their positions clear. Some attorneys took the liberty of filing reply affirmations. Reply affirmations were not included in the original request made by Court and were not read or considered by the Court. Understandably, the attorneys who secured this “record” $6.9 million settlement in a relatively short time frame believe they are entitled to a full 33 1/3 percent contingency fee consistent with the retainer agreement. They did outstanding legal work for the family in securing the settlement.

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