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Can a previous trustee's lawyer sue the Trust for fees after unsuccessfully representing the trustee against the beneficiaries?

San Diego, CA |

In a lengthy breach of fiduciary duty case, the trustee had several lawyers. One of the lawyers from a couple of years ago is coming forward demanding that the Trust pay her for her representation of the previous trustee against the beneficiaries. The beneficiaries have settled with the previous trustee, and a new trustee has been appointed, as it was discovered that the previous trustee had created a trustee vacancy pursuant to probate code 15643(f) when she filed for bankruptcy before the beneficiaries sued. Does the previous trustee's lawyer have grounds to sue the Trust for fees? In this case, the lawyer was not a previous trust lawyer, but was hired solely to represent the previous trustee against the beneficiaries.

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Attorney answers 4

Best Answer

This is a fine line. If the attorney was representing the trustee regarding trust business, yes the attorney can charge the trust. If the attorney was representing the trustee based on his/her breaches, and it was found he/she breached the trust, there is a good argument that the trustee is responsible for the attorney fees. If you settled, look to the settlement agreement - it should say who is responsible for what attorney fees.



The trustee is responsible for managing the trust so any counsel retained to represent the trustee is in effect representing the trust and most trusts have provisions that the trust is responsible for paying for legal fees of the trustee. It is recommended that you review the terms of the trust at issue.

Generally, If the previous trustee provided services to the trust and prior trustee was not paid, she has a right to expect payment.



The previous trustee was draining the assets of the trust and the beneficiaries were litigating to have the trustee removed, which was successful. The previous trustee's attorney was hired only to represent the previous trustee's interests in the breach of fiduciary duty case; it was the beneficiaries that were trying to preserve the trust. The reason for the settlement was because it was determined the the previous trustee actually hadn't been the legal trustee for years, even before the lawsuit, under probate code 15643(f), and that there was actually a trustee vacancy, knowledge of which had been withheld from the beneficiaries. I'm not certain if it could be argued that the previous trustee's lawyer was representing the trust in that case.


If the attorney was representing the trust by representing the Trustee, then YES>

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Agree with colleagues. Depends. First examine retainer agreement with attorney. It may control. Next examine who attorney represented and results obtained. Generally, if attorney represented the trust, she is entitled to attorneys fees and costs. If represented trustee, not in capacity as trustee for benefit of trust, attorneys fees and costs not a trust expense.

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