As in all settings, attorney or legal malpractice can be a defense to a fee claim by that attorney.  In Matter of Hart,  2022 NY Slip Op 22018,  Decided on January 12, 2022, Surrogate’s Court, Rockland County, Judge Cornell sets forth some of the rules.

“SCPA § 2110 authorizes the Court to fix and determine the compensation of an attorney at any time during the administration of the estate. SCPA § 2110(2) directs that the proceeding shall be instituted by petition of, inter alia, an attorney who has rendered services to the estate. The Uniform Rules for Surrogate’s Court require that an attorney file an affidavit of services in any proceeding to determine attorney’s fees. See 22 NYCRR § 207.45(a). The Court bears the ultimate responsibility for approving legal fees that are charged to an estate and has the discretion to determine what constitutes reasonable compensation for legal services rendered in the course of the administration of an estate. See Matter of Stortecky v. Mazzone, 85 NY2d 518 (1995); Matter of Vitole, 215 AD2d 765 (2d Dept. 1995); Matter of Verplanck, 151 AD2d 767, 767 (2d Dept. 1989) (surrogate “bears the ultimate responsibility to decide,” the reasonableness of compensation for legal services rendered to an estate); SCPA § 2110(3) (allowing Court to [*5]direct attorney to refund fees in excess of fair value of services rendered).

This power of the Surrogate to set fees is superior to the parties’ consent to a requested fee. See Stortecky, 85 NY2d at 526 (“[T]he Surrogate had the authority to inquire into the reasonableness of counsel’s fee even though agreed upon by the executor and assented to by the beneficiaries.”). The Court is not bound by the terms of a retainer agreement. See Matter of Williams, 168 AD3d 753, 753 (2d Dept. 2019) (“the Surrogate bears the ultimate responsibility of deciding what constitutes a reasonable legal fee, regardless of the existence of a retainer agreement”); In re Guattery, 278 AD2d 738 (3d Dept. 2000) (absence of written retainer agreement did not prevent Surrogate from fixing attorney’s fees); Estate of Paula M. Venezia, 2008 NY Misc. LEXIS 6644, 240 N.Y.L.J. 77 (Surr. Ct. Kings Co. 2008) (citing Matter of Schanzar, 7 AD2d 275 (1st Dept. 1959)).

The Surrogate also has the jurisdiction to determine attorney malpractice issues in a SCPA § 2110 proceeding to fix attorney’s fees. See In re Estate of Tarka, 293 AD2d 396, 396 (1st Dept. 2002) (“The court’s jurisdiction extended to . . . allegations of malpractice inasmuch as such claims allegedly arose in connection with the administration of the estate.”); Haskel & Lancaster, 2001 NYLJ LEXIS 160, NYLJ, Jan. 5, 2001 at Pg. 2, (col. 6) (Surr. Ct. Nassau Co. 2001) (Radigan, J.).”