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In re Estate of Campbell11/29/2005
nses in question. In Covington, we held:
{ } "At the time the first attorney fees were requested, Loc.R. 70.6 did not exist. It was not until approximately two years later that the rule was adopted by the probate court. Consequently, at the time this case was filed, Loc.R. 70.6 was not in effect. Statutes are prospective in application unless otherwise stated. Rules, likewise, should be prospective in application. It is unfair to require counsel to comply with a rule that was not in effect at the time of the original application. Furthermore, the rule in question, if it allows the reduction of attorney fees for failure to follow a 90-day limit, is substantive in nature rather than procedural. The rule affects the determination of who will receive attorney fees. Therefore, this local rule is inapplicable, and the rules in effect at the time of the original application do not provide a basis for lowering the attorney fees." (Internal citation omitted.) Covington, 7th Dist. No. 03-MA-98, at .
{ } Since Goldberg-Persky received the settlement proceeds in this case before Loc.R. 70.6 went into effect, it should not be penalized under that rule. As was the case in Traylor, Covington, Windsor, and Marsteller, Goldberg-Persky should be awarded the interest penalty amount of $5,103.96 as part of its fees. Accordingly, Goldberg-Persky's first assignment of error has merit.
{ } Goldberg-Persky's second assignment of error states:
{ } "THE PROBATE COURT ERRED DEDUCTING THE FEES OF THE SUCCESSOR ADMINISTRATOR/ COUNSEL FOR FIDUCIARY FROM APPELLANT'S ATTORNEY'S FEES."
{ } Here Goldberg-Persky argues that while Attorney Kelligher is owed fees for his work, those fees should not be deducted from its fees earned as litigation counsel. It contends that the fees should be deducted from the estate funds. Goldberg-Persky also notes that it does not object to paying Attorney Kelligher fiduciary's fees associated with bringing the applications for settlement and distribution of wrongful death settlements collected by it. However, it argues that the deduction of those fees from its fees was not discussed at the hearing. Therefore, no record was made as to what portion of the fees was reasonable to deduct.
{ } In his decision, the magistrate stated:
{ } "Goldberg, Persky cannot proceed in any Estate work related to this case file as none of their counsel is licensed to practice law within the State of Ohio. Thus, the present Ohio Counsel, Attorney Kelligher, was the only Ohio licensed practicing attorney admitted to represent the Estate. In doing so, he represents Goldberg, Persky as well as the beneficiary in prosecuting the instant claims. Accordingly, any fees paid by Goldberg, Persky is to be denied as a reimbursement of any possible claimed expense by Goldberg, Persky and are to be deducted from their litigation attorney fees. Counsel from Goldberg, Persky is well aware that any and all local attorney fees have been deducted from their fees in these cases, and did not raise any objections or question any of Attorney Kelligher's fees as to necessity or reasonableness during the instant hearing. Also, Goldberg, Persky has not objected to local attorney fees being deducted from their litigation attorney fees."
{ } This issue was not brought up at the hearing by either of the appellants or the magistrate. Thus, there was no evidence or arguments regarding whether Kelligher's fees should be deducted from Goldberg-Persky's fees, and if so, how much should be deducted.
{ } Goldberg-Persky agrees that it should pay Attorney Kelligher fiduciary's fees associated with bringing the applications for settlement and distribution of
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