Appeals from the Superior Court of the District of Columbia (INTVP Nos. 359-02, 225-02, 205-99). Hon. Margaret A. Haywood, Hon. Kaye K. Christian, Trial Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
Before FARRELL and REID, Associate Judges, and KERN, Senior Judge.
Before us are three consolidated appeals by attorneys retained to represent persons in the Probate Division of the Superior Court. Although factually different, each appeal presents the question of whether approval by the court is required before an attorney may receive payment of attorney's fees for representation in guardianship or other protective proceedings where the fees are paid, not from the ward's estate, but from personal funds of the guardianship petitioner or a third party.
In each case, the petitioners had retained an attorney and paid him with their own funds to help prepare and submit a petition for a guardianship and/or conservatorship, subsequently granted. In each case, the Superior Court ordered the fee payments returned (and referred the attorney to Bar Counsel), concluding that receipt of such fees without prior court approval was improper although the fees had not been paid out of estate funds. We hold, to the contrary, that when attorney's fees are not paid from the estate of a protected individual (or from the court's Guardianship Fund) but rather from private funds, no statutory basis exists for requiring court approval and the judicial intrusion that entails into what ultimately is a private contractual arrangement. Therefore, we reverse the orders requiring repayment of the attorney's fees in these cases.
In In re Grealis (No. 03-PR-963), siblings Jeanne and William Grealis were appointed co-guardians for their mother, and Jeanne was appointed conservator. Using his own funds, William Grealis paid a $5000 retainer to appellant Robert S. Bullock, a lawyer the Grealis siblings had hired to assist them with their guardianship petition and related proceedings. When Bullock later disclosed the payment on his petition to the Superior Court for reimbursement of the balance of his fees and expenses from the ward's estate, the Register of Wills wrote to the judge handling the matter that, "[g]enerally, in cases where fees are paid without prior authorization, the Court directs that the estate be repaid and that an order of reference to the Office of Bar Counsel be issued." Agreeing with this advice, the judge ordered Bullock to return the retainer and referred him to Bar Counsel for possible discipline. After Bullock returned the retainer, another judge approved payment of his fees from the court's Guardianship Fund, although at the lower rates applicable to such payments.*fn2
Similarly, in In re Sams (No. 03-PR-965), Dolores Sams and her sister were appointed co-guardians for their mother. Sams had previously retained attorney-appellant Leonard L. McCants to represent her in the guardianship proceeding, paying him a $250 consultation fee at their initial meeting and a $2,250 retainer two weeks later. When Sams later sought reimbursement for those payments from the estate, the Register of Wills again noted to the court that they were "paid without prior court approval" and "question[ed] whether the Court will deny reimbursement for the $2,500.00 in legal fees paid without court approval and refer the matter to the Bar Counsel accordingly." The judge handling the matter denied reimbursement and ordered McCants to repay Sams the $2,500, while referring him to Bar Counsel.*fn3
Finally, in In re Nazarczuk (No. 04-PR-169), Maria Nazarczuk retained attorney-appellant John A. Whitney to represent her in an effort to be appointed guardian and conservator for her mother, paying him with funds of her own. When she sought partial reimbursement from the court for these payments, the Register of Wills again opined that "payment of attorney fees from the personal funds of a client (regardless of whether the client intends to seek reimbursement) gives an impression of one circumventing the law in Probate matters[,] which require Court approval of legal fees." After holding two hearings, the judge handling the matter concluded that Whitney "inten[ded] to (1) avoid obtaining court approval prior to receiving said fees in accordance with Super. Ct. Prob. R. 308 and (2) avoid the scrutiny of the Court's reasonableness standard." The court referred Whitney to Bar Counsel and ordered him to return to Nazarczuk the $6,344.06 in fees she had paid him.*fn4
In 1986, the Council of the District of Columbia enacted the District of Columbia Guardianship, Protective Proceedings, and Durable Power of Attorney Act, D.C. Law 6-204, D.C. Code §§ 21-2001 et seq. (2001) (the Act or the 1986 Act), which established a comprehensive scheme governing guardianship and other protective arrangements. See generally In re Orshansky, 804 A.2d 1077 (D.C. 2002). Under the Act, the Superior Court may appoint a conservator or guardian for an "incapacitated individual," defined as: an adult whose ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that he or she lacks the capacity to manage all or some of his or her financial resources or to meet all or some essential requirements for his or her physical health, safety, habilitation, or therapeutic needs without court-ordered assistance or the appointment of a guardian or conservator.
D.C. Code § 21-2011 (11). A conservator "manage[s] the estate of a protected individual," id. § 21-2011 (3), while a guardian "is responsible for care, custody, and control of the ward." Id. § 21-2047. A person may seek appointment of a conservator or guardian for herself or for another person through a petition to the Superior Court. See id. §§ 21-2041 (guardian); 21-2052 (conservator).
The Act authorizes "compensation for services rendered" to persons who perform services in connection with a guardianship or other protective proceeding. Section 21-2060 (a) provides in relevant part: As approved by order of the court, any visitor, attorney, examiner, conservator, special conservator, guardian ad litem, or guardian is entitled to compensation for services rendered either in a guardianship proceeding, protective proceeding, or in connection with a guardianship or protective arrangement. . . . Compensation shall be paid from the estate of the ward or person or, if the estate of the ward or person will be depleted by payouts made under this subsection, from a fund established by the District.*fn5
This section is implemented by Super. Ct. Prob. R. 308, which originally provided, as relevant, that "[a]ny visitor, attorney, examiner, conservator, special conservator, guardian ad litem, or guardian is entitled to reasonable compensation for services rendered in an intervention proceeding. Compensation must be approved by order of the Court." Super. Ct. Prob. R. 308 (a) (1995). In 2002, the second sentence of the rule was amended to provide that "[c]ompensation paid from the assets of the subject of the proceeding, protected individual or ward, or from the Guardianship Fund, must be approved by Order of the Court before being paid." A comment to the amended rule states that the rule "is intended to ...