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Inlow Children v. Personal Represenative of the Estate of Inlow9/6/2000
aily, and that it had calculated Henderson Daily's "total fee for services rendered, on an hours worked times hourly rate basis $705,247.50 without any consideration being given to the application of the criteria as set forth in [Professional Conduct Rule 1.5(a)], applicable case law and [the trial court's] own guidelines." As discussed below, however, the trial court's failure to demonstrate its application of these criteria prevents a meaningful review of its order, thereby necessitating reversal and remand for greater specificity.
B. Double Billing
The Inlow children contend that the trial court erred in awarding fees to Henderson Daily for "four attorneys participating in the fee hearing (including one sitting in the gallery billing), three attorneys attending depositions, while yet others reviewed the same depositions, and other unnecessary, overlapping, and duplicative services," such as conferences with and reviews of documents prepared by outside experts. Indiana courts have not addressed double billing in any detail, but we find the following description to be sufficiently instructive in the probate context:
Although employment of multiple attorneys by a personal representative is viewed with disfavor, whether additional legal counsel may properly be employed at the expense of the estate depends ultimately on the facts and circumstances of the individual case.
However, the number of attorneys employed is not a determination factor in fixing the fee to be allowed. Indeed, where more than one attorney is unnecessarily employed by the representative, no more can be allowed for such attorneys' services than would amount to reasonable compensation if only one were employed, and in such case the single reasonable compensation allowed must be divided among the several attorneys rendering services. 34 C.J.S. Executors and Administrators ยง 262 (1998) (footnotes omitted).
Kindig observes that the trial court found it "[could] not conclude that the numerous conferences and reviews and meetings go beyond normal prudence in an estate of this size and enter the arena of `double billing.'" However, he fails to mention that the trial court also concluded that it was "concerned whether it able to determine, in reviewing the time and task reports of Counsel and their law firm, what parts of conferences and which items being researched or addressed or attended in fact was a duplication."
We are troubled that the trial court was able, in the Inlow children's words, to "itemize and mathematically quantify the reduction" for double billing by Jason's counsel, but was unable even to determine whether Henderson Daily had done so. The trial court's conclusion number 11 is simply not supported by its finding number 48, which is hardly surprising given the conflicting testimony adduced at the hearing and the vagueness of Henderson Daily's time and task reports. Although we recognize that the participation of more than one attorney is reasonable in certain instances, and that determination of attorney fees is a matter of trial court discretion, we conclude that remand is proper where the trial court acknowledges that the fee petition itself does not permit a reasoned determination of whether there was unnecessary duplication of effort leading to double billing. To assist its determination on remand, the trial court may order Henderson Daily to show cause why it cannot submit more detailed time and task reports, or it may hold additional hearings on this particular issue. Should the trial court find any instances of unnecessary duplication of effort, it must deduct such charges from Henderson Daily's fee award.
C. Wrongful Death
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