Rule 40 - Non-statutory and Extraordinary Fees(a) Amount. A fiduciary may pay fees for services of a fiduciary, attorney, or other professional that are not set by statute or court rule as long as the fees are just and reasonable in amount for the scope of services rendered. The reasonableness of the fees allowed shall be determined by all the facts and circumstances of the work performed including the complexity or ease of the matter, the experience, expertise, and uniqueness of services rendered, the amount of time spent on the matter, and the amount charged by others in similar situations. (b) Timing of Payment. A fiduciary may pay non-statutory and extraordinary fees as they are earned, subject to repayment if any interested person objects and if the court finds them excessive. Amended November 12, 1997, effective 12/15/1997.COMMENTARY:
The issue of what a fair fee is and when it gets paid is unsettled. This rule attempts to set forth some guidelines to provide certainty. Generally, professional fees, including those of an attorney, shall be compensated based on the types of services rendered. For example, where an attorney performs both legal and administrative services to an estate, the attorney should keep track, account for, and bill administrative services separate from, and probably at a lower rate from, the legal services rendered. HRS §560:3-721(a) requires the refund of compensation paid in excess of that approved by the court.