California law generally provides with respect to hourly and flat fee agreements, except in an emergency or when the client is a corporation, that when it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed $1,000, the contract for services in the case shall be in writing. In the event there is no written contract when one is required, or the agreement fails to comply in some other respect with Business and Professions Code section 6148, the agreement is voidable at the client’s option. If the agreement is voided by a client, the attorney is nonetheless entitled to a reasonable fee.
Although section 6148 appears to apply to all non-contingency fee agreements where the client is not a corporation, it does not necessarily apply when fees are regulated by statute. Such was the case in Estate of Wong, a probate case.
By way of background, the rules governing compensation for attorney services for decedents’ estates do not arise from contract but are founded upon statutory enactment. The pertinent statutory provisions govern both the amount recoverable and the procedure for recovery. An attorney’s compensation for ordinary services is based on the value of the estate and is calculated pursuant to a formula set forth in a statute. The probate court must order compensation out of estate assets for routine probate services rendered by an executor’s attorney. Services that are not involved in the typical probate case, commonly known as extraordinary services, may be paid out of estate assets at the discretion of the probate court. Attorneys’ fees that are properly considered an expense of administration, whether routine or extraordinary, are payable only out of the estate and are not a personal charge against the executor. The attorneys’ sole remedy for fees must be obtained from the probate court.
Held: By its own terms, section 6148 requires a written agreement in cases in which the potential “expense to a client” is likely to exceed $1,000. As explained above, however, attorney compensation for services rendered to the personal representative of a probate estate is not paid by the client, but out of the estate itself. Therefore, it is not simply unlikely but actually impossible that the “total expense” to the client of an attorney rendering ordinary probate services will exceed $1,000. Section 6148(a) does not apply when the “client” has no personal liability for the fees in question.