Mid-Year Developments: Fees, Duties and Commissions

August 03, 2021

As we continue to open our courts and office doors, the Surrogate’s and Appellate Courts throughout the state have been busy addressing a multitude of issues affecting trusts and estates practice. Opinions examining legal fees, breach of fiduciary duty, and statutory commissions are at the forefront of this month’s column.

Second Department Examines Fee Arrangements
In In re Cooper, 2021 N.Y. App. Div. LEXIS 4138 (2d Dep’t 2021), the Appellate Division, Second Department, modified an Order of the Surrogate’s Court, Nassau County, which awarded legal fees to present and former counsel for plaintiff in a proceeding to compromise a cause of action for the decedent’s wrongful death.

The record revealed that the petitioner, an attorney, was hired by the respondent/law firm pursuant to an employment agreement that specified that the petitioner was to receive a 40% forwarding fee on cases that he referred to the respondent. In April, 2012, the petitioner referred respondent an action to recover damages for wrongful death and conscious pain and suffering. Approximately two years later, the petitioner terminated the respondent’s employment. The petitioner took the wrongful death action with him, and continued to represent the estate of the decedent through settlement of the matter.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates.

Reprinted with permission from New York Law Journal, Friday, July 30, 2021, Vol 265 – No. 107.

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