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Syllabus
A lawyer who appears as court appointed guardian ad litem in probate, or similar proceedings, and who renders only the services normally required by this office is entitled to a reasonable fee for his services but not a fee based solely upon the size of the estate involved.
A judge has the duty to review the charges made by his appointees. He should disallow the excessive portion of such charges, and, where appropriate, censure those who make excessive charges.
Facts
A lawyer is appointed by the County Court to serve as guardian ad litem in the estate of a decedent or a mental incompetent. The lawyer attempts to collect a fee for his services that is dependent solely on the size of the estate, resulting in a fee in excess of that justified by the time spent or the responsibility involved.
Opinion
A lawyer has an obligation to assist in the administration of justice by accepting court appointments of various types. It is axiomatic that the lawyer who accepts an appointment should fulfill the trust imposed by that office to the best of his ability and with the utmost dispatch. It is well known that many appointments made by courts consist only of examining the court file in the matter and appearing at a hearing which is of short duration. In this type of appointment, the lawyer's compensation should be based substantially on the time expended, and not on the size of the estate.
When the appointment requires additional work, the lawyer should make a reasonable charge commensurate with those services. The size of the estate might then be one element used in determining what is a reasonable fee. At all times the appointed lawyer should be scrupulously fair with the court and with the client. The reason for the appointment is generally to represent the interests of a person deemed not capable of protecting himself because of lack of age or lack of mental capacity. To subject such a person to the additional hazard of protecting his property from the one appointed by the court to serve that purpose is indeed a miscarriage of justice.
In the final analysis it is the duty and obligation of the judge making the appointments to approve or disallow the charge for services made by his appointee. It is an obligation he cannot avoid since it is clearly a responsibility of his office.
Canon 12, Canons of Judicial Ethics, provides:
Trustees, receivers, masters, referees, guardians and other persons appointed by a judge to aid in the administration of justice should have the strictest probity and impartiality and should be selected with a view solely to their character and fitness. The power of making such appointments should not be exercised by him for personal partisan advantage. He should not permit his appointments to be controlled by others than himself. He should also avoid nepotism and undue favoritism in his appointments.
While not hesitating to fix or approve just amounts, he should be most scrupulous in granting or approving compensation for the services or charges of such appointees to avoid excessive allowances, whether or not expected to or complained of. He cannot rid himself of this responsibility by the consent of counsel.
A judge who refuses to review the charges made by his appointee, to disallow the excessive portion of such charges, and, where appropriate, to censure those who make excessive charges is neglecting a duty imposed upon him by law and by the Canons of Judicial Ethics.
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