[Cite as In re Estate of Hunter, 2023-Ohio-1197.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

In the Matter of the Estate of :

Dessie M. Hunter, No. 22AP-430

: (Prob. No. 611140)

[John Neil Lindsey, : (REGULAR CALENDAR)

Appellant]. :

D E C I S I O N

Rendered on April 11, 2023

On brief: John Neil Lindsey, pro se. 

APPEAL from the Franklin County Court of Common Pleas,

Probate Division

LUPER SCHUSTER, J.

{¶ 1} Appellant, John Neil Lindsey, appeals from a judgment of the Franklin 

County Court of Common Pleas, Probate Division, approving in part, and denying in part, 

Lindsey’s attorney fees request. For the following reasons, we affirm.

I. Facts and Procedural History

{¶ 2} On April 28, 2021, Dessie M. Hunter (“decedent”) died intestate, and her son, 

George Hunter, was appointed administrator of her estate in July 2021. George retained 

Lindsey as legal counsel to assist in the administration of the estate. In May 2021, the state 

of Ohio asserted a Medicaid estate recovery claim of $156,476.12 against decedent’s estate. 

This claim was later waived in full. 

{¶ 3} Decedent died with a fee simple interest in real estate appraised at 

$91,700.00. With the consent of all decedent’s heirs, in February 2022, this property was 

sold. George subsequently filed the following documents in the probate court: the final 

fiduciary’s account, receipts and disbursements (with the settlement statement for the sale 
No. 22AP-430 2

of the property attached), consent of each heir to the fiduciary’s account and the receipts 

and disbursements, and consent of each heir to payment of the attorney fees of $18,180.00

(with Lindsey’s billing statement included). The property settlement statement included a 

seller’s debt of $23,471.41, which was identified as a charge for “Attorney Fee (Medicaid 

Neg.) to John Neil Lindsey.” (Settlement Statement at 2.) The probate court set the matter 

for a hearing on attorney fees and the final and distributive account. 

{¶ 4} Lindsey and the estate’s administrator, George, appeared at the hearing. The 

probate court asked Lindsey why the attorney fees were relatively high in the 

administration of the estate, and Lindsey explained that the sale of decedent’s property 

required an unusual amount of time because multiple deals fell through shortly before 

closing. Lindsey also indicated that the charged contingent fee was based on his efforts in 

negotiating the state of Ohio’s full waiver of the Medicaid estate recovery claim. He 

acknowledged, however, that he did not obtain probate court approval before entering the 

contingent fee agreement with the fiduciary concerning the Medicaid estate recovery claim. 

George stated he was very pleased with Lindsey’s legal work relating to decedent’s estate. 

Approximately two weeks after the hearing, the probate court filed an entry approving and 

settling the estate accounts. A few weeks later, the probate court approved the requested 

attorney fees in part. The court approved the $18,180.00 in attorney fees that Lindsey

billed to the estate based on his time spent on the matter, but it disallowed Lindsey’s

requested $23,471.41 contingent fee based on the state’s waiver of the Medicaid estate 

recovery claim. 

{¶ 5} Lindsey timely appeals. 

II. Assignment of Error

{¶ 6} Lindsey presents the following sole assignment of error for our review:

The Trial Court abused its discretion by denying the attorney 

fee under the contingent fee agreement in full as it failed to 

apply fully the reasonableness factors of Professional Rule of 

Conduct 1.5(a).

III. Discussion

{¶ 7} In his sole assignment of error, Lindsey alleges the probate court abused its 

discretion in disallowing his attorney fees request that was based on the contingent fee 
No. 22AP-430 3

agreement. He contends the probate court erred in failing to properly consider and apply 

Prof.Cond.R. 1.5(a) as to that request. This assignment of error is not well-taken.

{¶ 8} The amount of an attorney fees award is a matter within the trial court’s 

sound discretion. Bittner v. Tri-Cty. Toyota, Inc., 58 Ohio St.3d 143, 146 (1991). An 

appellate court will not reverse a determination of attorney fees unless the appellant 

demonstrates an abuse of discretion and that “ ‘the amount of fees determined is so high or 

so low as to shock the conscience.’ ” Id., quoting Brooks v. Hurst Buick-Pontiac-Olds-GMC,

Inc., 23 Ohio App.3d 85, 91 (12th Dist.1985). An abuse of discretion connotes a decision 

that was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio 

St.3d 217, 219 (1983).

{¶ 9} “Reasonable attorney fees paid by the executor or administrator of an estate 

are allowed as part of the expenses of administration and the probate court is authorized to 

fix the amount of such fees.” In re Estate of Klie, 10th Dist. No. 16AP-77, 2017-Ohio-487, 

¶ 21. R.C. 2113.36 states: “If an attorney has been employed in the administration of the 

estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a 

part of the expenses of administration. The court may at any time during administration 

fix the amount of those fees and, on application of the executor or administrator or the 

attorney, shall fix the amount of the fees.” Thus, a probate court only may award reasonable 

fees to attorneys who are employed in the administration of an estate.

{¶ 10} The attorney seeking fees bears the burden of proving the reasonableness of 

the fees. In re Estate of Born, 10th Dist. No. 06AP-1119, 2007-Ohio-5006, ¶ 18. In 

determining the reasonableness of attorney fees, the probate court must consider the facts 

and circumstances of each case. Id. at ¶ 19. Ohio Sup.R. 71(A) provides that attorney fees 

in all matters shall be governed by Prof.Cond.R. 1.5, which states:

The factors to be considered in determining the reasonableness 

of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill requisite to perform the legal 

service properly;

(2) the likelihood, if apparent to the client, that the acceptance 

of the particular employment will preclude other employment 

by the lawyer;
No. 22AP-430 4

(3) the fee customarily charged in the locality for similar legal 

services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the 

circumstances;

(6) the nature and length of the professional relationship with 

the client;

(7) the experience, reputation, and ability of the lawyer or 

lawyers performing the services;

(8) whether the fee is fixed or contingent.

{¶ 11} Here, the fee at issue was a contingent fee. Except in certain matters, an 

attorney “fee may be contingent on the outcome of the matter for which the service is 

rendered.” Prof.Cond.R. 1.5(c). “[T]he obvious but critical characteristic of a contingent 

fee arrangement [is] the presence of risk.” In re Sulzer Hip Prosthesis & Knee Prosthesis 

Liab. Litigation, 290 F.Supp.2d 840, 850 (N.D.Ohio 2003). A “contingent-fee lawyer bears 

the risk of receiving no pay if the client loses and is entitled to compensation for bearing 

that risk.” Restatement of the Law 3d, Governing Lawyers, Section 35, Comment c (2000). 

Consequently, “the reasonableness of an attorney’s contingent fee depends directly on 

whether (or to what extent) real risk is present.” Sulzer Hip Prosthesis at 850. That is, 

“ ‘[n]ot every contingent fee is justifiable by appeal to the lawyer’s assumption of the risk of 

nonrecovery. There are situations in which the lawyer knows in advance that the 

contingency factor is negligible, or in which the lawyer’s effort bear[s] virtually no 

relationship to the size of the recovery, resulting in pure windfall.’ ” Id. at 851, quoting 1 

Hazard & Hodes, The Law of Lawyering, Section 8.6, at 8.16 (3d Ed.2000).

{¶ 12} A contingent fee agreement between an attorney and an estate administrator 

or executor generally must be preapproved by a probate court. Pursuant to Sup.R. 71(I), 

“[p]rior to a fiduciary entering into a contingent fee contract with an attorney for services, 

an application for authority to enter into the fee contract shall be filed with the court, unless 

otherwise ordered by local court rule. The contingent fee on the amount obtained shall be 

subject to approval by the court.” Consistent with Sup.R. 71(I), Loc.R. 71.8 of the Franklin 
No. 22AP-430 5

County Probate Court states that “[a]ll fiduciaries shall make written application to the 

Court for authority to enter into a contingent fee contract.” Such an application must 

include “a case plan, time projection, and estimated costs, as available,” and is reviewed by 

the court for either preliminary approval or disapproval. Loc.R. 71.8. A preliminary 

approval is “subject to final review at the conclusion of the matter that is the subject of the 

contingent fee contract.” Loc.R. 71.8.

{¶ 13} In this matter, Lindsey requested the probate court’s approval of $23,471.41 

as a contingency fee for his work relating to negotiating a waiver for a Medicaid estate 

recovery claim. After decedent’s death, the state asserted a Medicaid estate recovery claim 

of nearly $160,000.00 against her estate. On December 23, 2021, George agreed to pay 

Lindsey 20 percent of the amount reduced or waived of the Medicaid estate recovery claim 

against decedent’s estate resulting from Lindsey’s services. At the attorney fees hearing 

before the probate court, Lindsey indicated he was able to obtain a full waiver of that claim 

against decedent’s estate. Based on that waiver and the terms of the legal services 

agreement concerning the Medicaid estate recovery claim, he sought a fee of $31,295.22, 

less a discretionary reduction of 5 percent, or $23,471.41. The probate court denied 

Lindsey’s contingent fee request for two reasons: “The contingent fee was not approved by 

the court prior to entering into a contingent fee agreement and Attorney Lindsey did not 

meet his burden of proof to show that amount was justified by the amount of time spent on 

the reduction of the Medicaid Estate Recovery Claim.” (June 22, 2022 Jgmt. Entry at 3.)

{¶ 14} Both of these reasons are supported by law and the record. Despite the

preapproval requirement set forth in Sup.R. 71(I) and Loc.R. 71.8, Lindsey concedes he and 

George did not obtain court approval before entering the contingent fee agreement. The 

“failure to comply with Sup.R. 71(I) is ample authority for a probate court to reject a 

contingent fee contract which has not received prior court approval and find that such a 

contract is not enforceable.” In re Stine, 3d Dist. No. 5-06-11, 2006-Ohio-6687, ¶ 16. Thus,

the non-compliance of Lindsey and the fiduciary with Sup.R. 71(I) and Loc.R. 71.8 provided 

a reasonable basis for the probate court to disallow the payment of the requested contingent 

fee.

{¶ 15} Additionally, the probate court’s finding, that Lindsey did not meet his 

burden of demonstrating that the $23,471.41 fee was justified by the amount of time spent 
No. 22AP-430 6

on the reduction of the Medicaid estate recovery claim, is supported by the record. In effect, 

the probate court found that Lindsey did not show his request was reasonable. Lindsey 

argues that the probate court, in reaching this determination, did not consider factors 

favoring his position, such as his time communicating with several attorneys regarding the 

claim waiver, his experience and expertise in the subject matter, the customary fees charged 

in the locality, the results obtained, and his 5 percent reduction of the fee after successfully 

obtaining the waiver. We are unpersuaded.

{¶ 16} Lindsey’s argument is flawed because it does not address the absence of 

evidence showing what he did, and how much time he spent, obtaining the waiver on his 

client’s behalf, separate from, and in addition to, what is indicated on the invoice entries

for his hourly charged work. Nor did he demonstrate that there remained real risk to the

estate, at the time the contingent fee agreement was entered, that the state’s Medicaid 

estate recovery claim would not be withdrawn or waived once the relevant information was 

provided to the state. At the attorney fees hearing, Lindsey stated he had communications 

with outside counsel from the Ohio Attorney General’s Office and a Senior Assistant Ohio 

Attorney General concerning the Medicaid estate recovery claim. Lindsey also generally 

referenced negotiating the Medicaid estate recovery claim waiver. But he did not 

differentiate between time spent assisting in the administration of the estate and 

negotiating a waiver of the Medicaid estate recovery claim. Nor did he detail the 

circumstances of negotiating the waiver. In fact, Lindsey’s itemized invoice for services 

provided in the administration of the estate, for which he was fully compensated, includes 

multiple references to “Medicaid waiver,” and a charge for a January 5, 2022 consultation 

with counsel for the Ohio Attorney General’s Office regarding “[c]onflict of interest and 

sense of impropriety.” (Lindsey’s Time & Expenses Invoice at 3.) Furthermore, the invoice 

also includes a charge relating to a December 23, 2021 e-mail from George “[c]onfirming 

waiver eligibility,” which was the same date that Lindsey and George executed the 

contingent fee agreement. (Lindsey’s Time & Expenses Invoice at 3.) Despite evidence of 

this confirmation, Lindsey did not indicate, at the attorney fees hearing, that real risk to the 

estate concerning the claim remained when the contingent fee agreement was entered.

{¶ 17} Therefore, even assuming Lindsey’s experience, the customary fees charged 

in the locality, the results obtained, and his voluntary reduction of the fee, favored Lindsey’s 
No. 22AP-430 7

position, the absence of evidence indicating real risk to the client when the agreement was 

entered and specifically what Lindsey did to “negotiate” and secure the waiver (the 

contingent event) in addition to, and separate from, hourly billed time, supported a finding 

that the contingent fee was not reasonable. Based on these circumstances, we find the 

probate court did not abuse its discretion in concluding that Lindsey did not meet his 

burden of demonstrating his entitlement to the requested contingent fee.

{¶ 18} Because the probate court did not err in denying Lindsey’s request for the

approval of the contingent fee, we overrule his sole assignment of error.

IV. Disposition

{¶ 19} Having overruled Lindsey’s sole assignment of error, we affirm the judgment 

of the Franklin County Court of Common Pleas, Probate Division.

Judgment affirmed.

BEATTY BLUNT, P.J., and MENTEL, J., concur.