(a) Reasonable attorney's fees.
(1) In all cases under Code of Civil Procedure section 372 or Probate Code sections 3600–3601, unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability.
(2) The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made, except where the attorney and the representative of the minor or person with a disability contemplated that the attorney's fee would be affected by later events.
(Subd (a) amended and lettered effective January 1, 2010; adopted as unlettered subd.)
(b) Factors the court may consider in determining a reasonable attorney's fee.
In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors:
(1) The fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability.
(2) The amount of the fee in proportion to the value of the services performed.
(3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly.
(4) The amount involved and the results obtained.
(5) The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circumstances.
(6) The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability.
(7) The experience, reputation, and ability of the attorney or attorneys performing the legal services.
(8) The time and labor required.
(9) The informed consent of the representative of the minor or person with a disability to the fee.
(10) The relative sophistication of the attorney and the representative of the minor or person with a disability.
(11) The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment.
(12) Whether the fee is fixed, hourly, or contingent.
(13) If the fee is contingent:
(A) The risk of loss borne by the attorney;
(B) The amount of costs advanced by the attorney; and
(C) The delay in payment of fees and reimbursement of costs paid by the attorney.
(14) Statutory requirements for representation agreements applicable to particular cases or claims.
(Subd (b) adopted effective January 1, 2010.)
(c) Attorney's declaration.
A petition requesting court approval and allowance of an attorney's fee under (a) must include a declaration from the attorney that addresses the factors listed in (b) that are applicable to the matter before the court.
(Subd (c) adopted effective January 1, 2010.)
The Judicial Council has preempted all local rules relating to the determination of reasonable attorney's fees to be awarded from the proceeds of a compromise, settlement, or judgment under Probate Code sections 3600–3601. No trial court, or any division or branch of a trial court, may enact or enforce any local rule concerning this field, except a rule pertaining to the assignment or scheduling of a hearing on a petition or application for court approval or allowance of attorney's fees under sections 3600–3601. All local rules concerning this field are null and void unless otherwise permitted by a statute or a rule in the California Rules of Court.
(Subd (d) adopted effective January 1, 2010.)
Rule 7.955 amended effective January 1, 2010; adopted effective January 1, 2003; previously amended effective January 1, 2007.
Advisory Committee Comment
This rule requires the court to approve and allow attorney's fees in an amount that is reasonable under all the facts and circumstances, under Probate Code section 3601. The rule is declaratory of existing law concerning attorney's fees under a contingency fee agreement when the fees must be approved by the court. The facts and circumstances that the court may consider are discussed in a large body of decisional law under section 3601 and under other statutes that require the court to determine reasonable attorney's fees. The factors listed in rule 7.955(b) are modeled after those provided in rule 4-200 of the Rules of Professional Conduct of the State Bar of California concerning an unconscionable attorney's fee, but the advisory committee does not intend to suggest or imply that an attorney's fee must be found to be unconscionable under rule 4-200 to be determined to be unreasonable under this rule.
The rule permits, but does not require, the court to allow attorney's fees in an amount specified in a contingency fee agreement. The amount of attorney's fees allowed by the court must meet the reasonableness standard of section 3601 no matter how they are determined.