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Matter of Conservatorship of Fallers5/31/1994
VOSS, Judge
This appeal is from the probate court's judgment establishing Appellant Bert L. Roos's attorney's fees for his representation of four minors in a wrongful death action, and from the denial of his Motion for New Trial. The sole issue in this appeal is whether the probate court erred in limiting Roos's attorney's fees to $70,260.00 rather than awarding him the $315,263.00 called for by the contingency fee agreement entered into by the minors' conservator. Because we find that the probate court abused its discretion in limiting the amount of Roos's fee, we reverse and remand with instructions to award Roos his contingent fee.
I. FACTS AND PROCEDURAL HISTORY
On March 13, 1989, Scott Fallers died from injuries he received in a motorcycle accident. Surviving him were his pregnant wife, his parents, and his four children from his previous marriage. Celeste (Fallers) Palmer, Scott's former wife, retained Roos to represent her four minor children in the wrongful death action. She agreed to a one-third contingent fee. Several weeks later, Roos was informed that Marlene Appel had been retained by Coreen Fallers, Scott's widow, to represent her, her and Scott's unborn child, Brandon, and Scott's parents. Appel was likewise retained pursuant to a one-third contingency fee agreement.
Shortly after they were retained, Roos and Appel began working as a team. Because Appel represented Scott's widow, Appel signed and filed the complaint and was counsel of record in the suit. Both Roos and Appel participated in drafting the pleadings, in court hearings, in discovery, and eventually in settlement negotiations.
The wrongful death action was pending for two years. On the day prior to trial, the defendants' insurer admitted liability, and the case was reset for a trial on damages. Then, with the trial on damages only four days away, the parties agreed to settle the lawsuit for $2,000,000.00 cash. Of that amount, each of the minors represented by Roos was to receive $237,500.00.
Following the settlement, Roos and Appel applied to the probate court for approval of the minors' proposed settlement. Probate Court Commissioner Kenneth W. Reeves III, approved the settlement, but sua sponte questioned the reasonableness of the attorneys' one-third contingent fees. Because of his concerns, Commissioner Reeves appointed Steven A. Hirsch as guardian ad litem for the purpose of reviewing attorneys' fees. Following Hirsch's appointment, Commissioner Reeves recused himself and the case was transferred to Judge Morris Rozar.
Hirsch reviewed the court's file and affidavits filed in support of attorneys' fees. He concluded that Appel had received sufficient compensation from her one-third recovery from Coreen and Scott's parents; therefore, Hirsch recommended that Appel receive no fees for her representation of Brandon. As to Roos's request, Hirsch recommended that Roos be compensated $61,800.00. Roos and Appel objected to Hirsch's recommendations. At a hearing regarding the attorneys' fees, Roos and Appel presented evidence supporting their claims for the full one-third contingent fees. Following the hearing, Judge Rozar awarded Appel one-third of Brandon's recovery, but awarded Roos $70,260.00 rather than the $315,263.00 called for by the contingency fee agreement. Roos filed a Motion for New Trial, which was denied. Roos filed a special action in this court, but jurisdiction was declined. This appeal is from the denial of the Motion for New Trial and the judgment limiting Roos's attorney's fees.
II. DISCUSSION
A. THE STANDARD
While courts in the United States recognize attorneys' rights to enter into con
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