Estate of Castruccio v. Castruccio

Estate of Peter Castruccio, et al. v. Sadie M. Castruccio, No. 1023, Sept. Term 2018. Opinion by Arthur J. ESTATE ADMINISTRATION—SPECIAL ADMINISTRATOR’S POWER TO HIRE COUNSEL WITHOUT COURT APPROVAL A special administrator of an estate may engage counsel to prosecute and defend litigation on behalf of the estate without court approval under the power to “collect, manage and preserve property” granted by section 6-403 of the Estates and Trusts Article. ATTORNEYS’ FEES—ESTIMATION OF FUTURE FEES IN FEE PETITION When a fiduciary of a decedent’s estate cannot make a reasonable, good faith estimate of the likely future fees, the fiduciary is not required to make such an estimate in a petition for attorneys’ fees under Md. Rule 6-416. ATTORNEYS’ FEES—COMPENSATION FOR PARTICPATION IN A WILL CONSTRUCTION ACTION Fiduciaries of an estate who defend against challenges to their reasonable, good faith construction of the will are acting to benefit the estate by effectuating the testator’s intent and are entitled to attorneys’ fees for their participation in the action.

ATTORNEYS’ FEES—DETERMINATION OF REASONABLE FEE— LODESTAR METHOD The lodestar method of calculating attorneys’ fees does not apply to the determination of reasonable attorneys’ fees for a fiduciary of an estate. Courts should consider the amount of requested fees in relation to the size of the estate when a fiduciary is seeking to shift the costs of the litigation to the estate. ATTORNEYS’ FEES—DETERMINATION OF REASONABLE FEE— “LOCALITY” FACTOR Under Md. Rule 19-301.5, a court may not confine the limits of a reasonable hourly rate to fees “customarily charged in the locality” in cases where qualified local counsel was not readily available. Court should consider whether local counsel was willing to take the case, whether local counsel with necessary expertise was available, and whether the complexity of the case warranted the rates charged by the attorneys when reviewing the locality’s conventional rates.

ATTORNEYS’ FEES—DENIAL OF HOURS BILLED—OPPORTUNITY TO BE HEARD A court must give the party petitioning for attorneys’ fees an opportunity to address the court’s concerns with the requested fees before reducing the hours billed by the petitioner’s attorneys. Attorneys for the petitioners are not required to provide explicit details for each hour billed in their petition, and a court must provide a concise but clear explanation for its decision to award all of part of the requested fee to provide an appropriate basis for meaningful appellate review. ATTORNEYS’ FEES—DENIAL OF HOURS BILLED—FEES FOR UNSUCCESSFUL PRE-TRIAL MOTIONS A court cannot deny requested attorneys’ fees incurred in connection with pretrial motions filed by the attorneys solely because those motions were not granted. Rather, the court should conduct a nuanced inquiry into the reasonableness of the arguments that were advanced in those motions and the extent, if any, to which they may have benefitted the estate.

ATTORNEYS’ FEES—DETERMINATION OF REASONABLE FEE— RELEVANT FACTORS BESIDES THOSE SET FORTH IN RULE 1.5 Maryland courts are permitted to consider relevant factors besides those set forth in Md. Rule 19-301.5 when calculating a reasonable fee award for an estate’s attorneys. Courts may also consider: (1) the actions of the beneficiaries in relation to the length or complexity of the litigation; (2) whether the beneficiaries approved of or instigated the litigation; and (3) whether the fiduciary of the estate had an opportunity to reach a reasonable settlement with the opposing party. EVIDENCE—ADMISSIBILITY OF STATEMENT MADE IN MEDIATION In general, all statements made in a court-ordered mediation are effectively inadmissible under the Maryland Mediation Confidentiality Act, even if they are offered for some purpose other than proving the “validity, invalidity, or amount of a civil claim in dispute” under Md. Rule 5-408. Circuit Court for Anne Arundel County Case No. C-02-CV-16-000278 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1023 September Term, 2018 ______________________________________ ESTATE OF PETER CASTRUCCIO, ET AL. v. SADIE M. CASTRUCCIO ______________________________________ Graeff, Nazarian, Arthur, JJ. ______________________________________ Opinion by Arthur, J. ______________________________________ Filed: July 29, 2020 *Judge Timothy E. Meredith did not participate in the Court’s decision to designate this opinion for publication pursuant to Maryland Rule 8- 605.1.

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2021-01-11 14:57-05:00 Suzanne C. Johnson, Clerk This case marks yet another appeal to this Court concerning the administration of the estate of Dr. Peter Adalbert Castruccio.1 While defending against a series of lawsuits initiated by Dr. Castruccio’s widow, the fiduciary of the estate submitted an interim petition for attorneys’ fees and expenses to the Orphans’ Court for Anne Arundel County. He requested that the fees be paid out of the estate’s assets. Mrs. Castruccio objected to the petition, principally on the ground that the fiduciary had not obtained the orphans’ court’s approval to retain one of the firms that represented him.

Darlene Barclay, the principal beneficiary of the estate, objected on the ground that the fees should be charged against Mrs. Castruccio’s share of the estate because she had allegedly acted in bad faith during the litigation. The orphans’ court denied the exceptions, and Ms. Barclay and Mrs. Castruccio filed de novo appeals to the Circuit Court for Anne Arundel County. After a six-day trial, the circuit court permitted the attorneys’ fees and expenses to be paid out of the estate’s assets. The court took issue, however, with the lawyers’ hourly rates and with the number of hours billed by counsel for the estate.

The court significantly reduced the hourly rates of most of the estate’s attorneys and cut nearly a 1 For a summary of the Castruccio cases considered by this Court through September 2019, see Matter of Estate of Castruccio, No. 69, Sept. Term 2018, 2019 WL 4467146 , at ¹ n.1 (Md. Ct. Spec. App. Sept. 17, 2019). Since then, this Court has considered yet another Castruccio case: Greiber v. Castruccio, No. 791, Sept. Term 2018, 2019 WL 6358932 (Md. Ct. Spec. App. Nov. 27, 2019).

Of the cases that this Court has considered, the Court of Appeals has affirmed our decisions in two: Castruccio v. Estate of Castruccio, 456 Md. 1 (2017), and Barclay v. Castruccio, ___ Md. ___, No. 30, Sept. Term 2019 (June 30, 2020). third of the billed hours. The court also denied Ms. Barclay’s request to apportion the fees to Mrs. Castruccio’s share of the estate. All three parties appealed the circuit court’s ruling. Mrs. Castruccio challenges the court’s decision to permit the attorneys’ fees to be paid from the estate.

The fiduciary of the estate and his attorneys contest the court’s reduction of the proposed attorneys’ fees. Ms. Barclay contends that the court should have found that Mrs. Castruccio acted in bad faith and, therefore, shifted the attorneys’ fees to Mrs. Castruccio’s share of the estate. We affirm the circuit court’s denial of Ms. Barclay’s and Mrs. Castruccio’s exceptions to the fee petition. We vacate the award of attorneys’ fees, however, and remand the case for the court to determine an award that is consistent with this opinion.2 FACTUAL AND PROCEDURAL BACKGROUND Dr. Peter Castruccio died on February 19, 2013, and was survived by his wife of 62 years, Sadie Castruccio.

The Register of Wills of Anne Arundel County admitted Dr. Castruccio’s will and codicil to administrative probate on February 26, 2013, and appointed his long-time personal lawyer, John Greiber Jr., as the personal representative of the estate under the terms of the will. The inventory value of Dr. Castruccio’s estate was $6,628,972.95. After making a few cash gifts, Dr. Castruccio’s will stated that Mrs. Castruccio 2 We understand that Mrs. Castruccio died on March 4, 2020, after the case was argued in this Court. None of the parties informed us of Mrs. Castruccio’s death, and no one has been substituted in her place in accordance with Md. Rule 8-401(b). 2 would receive the entire residuary estate if she survived him and had made and executed a will before his death.

In a separate section, however, the will stated that if Mrs. Castruccio did “not have a valid Will filed with the Register of Wills in Anne Arundel County dated prior thereto these [sic],” the residuary estate would go to Darlene Barclay, Dr. Castruccio’s longtime assistant. On March 4, 2013, Mr. Greiber, the personal representative, hired Robert H.B. Cawood of the Annapolis firm of Cawood and Cawood LLC to serve as counsel to the estate. Within days thereafter, Mrs. Castruccio would initiate the first of several legal proceedings concerning Dr. Castruccio’s will and the administration of estate: a petition to caveat the will. In response to that proceeding and the likelihood of additional proceedings, Mr. Greiber promptly engaged Shale D. Stiller, Brett Ingerman, and Melissa L. Mackiewicz, attorneys at the Baltimore office of the international law firm DLA Piper LLP (US) (“DLA”), to serve as lead litigation counsel.

As part of the engagement, DLA agreed to discount its standard hourly rates by 18.55 percent and not to increase the rates during the pendency of the engagement. I. The Many Actions in the Administration of the Estate of Peter Castruccio During the years immediately following Dr. Castruccio’s death, Mrs. Castruccio initiated lawsuits to contest the validity of the will, Mr. Greiber’s interpretation of the will, and the administration of the estate. She also initiated another lawsuit that was designed to extract millions of dollars in assets from the estate, so that they would pass to her outside of probate. In addition, she refused to comply with a court order, which 3 prompted the estate to initiate contempt proceedings against her.

These various legal proceedings led to a multitude of hearings, appeals, motions for summary judgment, a four-day trial, and extensive discovery. A. The Caveat Action On March 12, 2013, Mr. Cawood informed Mrs. Castruccio that, under the terms of the will, she would receive the residuum of her late husband’s estate only if she had had a “valid Will filed with the Register of Wills in Anne Arundel County dated prior thereto these,” as the will stipulated. Mrs. Castruccio had not filed (or deposited) a will with the register of wills.3 On March 27, 2013, Mrs. Castruccio filed a petition to caveat in the Orphans’ Court for Anne Arundel County, in which she sought to invalidate the will and obtain a declaration that Dr. Castruccio had died intestate. Mrs. Castruccio would receive the entire net estate if her late husband had died intestate.

See Md. Code (1974, 2017 Repl. Vol., 2020 Supp.), § 3-102(f) of the Estates and Trusts Article (“ET”).4 3 Initially, the estate took the position that the phrase “dated prior thereto these” meant that Mrs. Castruccio had to have deposited a valid will with the register of wills that was dated before the date of Dr. Castruccio’s 2010 will. Later, the estate modified its position to assert that Mrs. Castruccio had to have deposited a valid will with the register of wills before Dr. Castruccio’s death. See Castruccio v. Estate of Castruccio, 239 Md. App. 345 , 350 n.2 (2018).

Ultimately, it makes no difference which of the interpretations is correct, because Mrs. Castruccio unquestionably had not satisfied either of them. 4 Throughout this opinion, citations to “ET” refer to the most recent version of the Estates and Trusts Article of the Maryland Code. In 2019, the General Assembly made “stylistic” and “technical” changes to many of the provisions cited in this opinion, as part of a comprehensive recodification of the Estates and Trusts Article. See 2019 Md. Laws. ch. 197, preamble. The revisions were intended to be “nonsubstantive.” Id. § 2. 4 During the litigation of the caveat action, the orphans’ court transmitted a number of factual issues to the Circuit Court for Anne Arundel County for determination.

See ET § 2-105(b). After extensive discovery, the circuit court granted the estate’s motion for summary judgment on October 7, 2014, and rejected Mrs. Castruccio’s challenge to the validity of her late husband’s will. This Court affirmed the grant of summary judgment in a reported decision. Castruccio v. Estate of Castruccio, 230 Md. App. 118 (2016).

The Court of Appeals granted Mrs. Castruccio’s petition for a writ for certiorari and affirmed this Court’s decision. Castruccio v. Estate of Castruccio, 456 Md. 1 (2017). B. The Deed Action On April 13, 2013, less than three weeks after she filed the petition to caveat, Mrs. Castruccio filed an action in the Circuit Court for Anne Arundel County to quiet title to seven pieces of commercial real estate, valued at $3.6 million, that were held in the name of her late husband. Mrs. Castruccio alleged that Dr. Castruccio had forged her signature on the deeds that conveyed those properties from the Castruccios as tenants by the entireties to Dr. Castruccio alone.

In effect, Mrs. Castruccio sought to extract those properties from her late husband’s estate so that they would pass to her as the surviving tenant. If she were to succeed, the estate would lose more than half of its value. After fourteen months of contentious discovery and four days of trial, the circuit court entered judgment in favor of the estate on all counts. In reaching its decision, the court stated that Mrs. Castruccio was “a particularly poor litigant to pursue this claim since she participated in the transaction by giving her assent and approval to it.” Indeed, the court observed that, at about the same time that Dr. Castruccio signed his wife’s name 5 to the deeds that conveyed seven jointly-held properties to himself, he also signed her name to deeds that conveyed four jointly-held properties, of roughly equal value, to her alone.

The court surmised that the conveyances were part of a plan to divide the couple’s assets for tax and estate-planning purposes. This Court affirmed the circuit court’s judgment, and the Court of Appeals denied Mrs. Castruccio’s petition for a writ of certiorari. See Castruccio v. Estate of Castruccio, No. 2622, Sept. Term 2014, 2015 WL 9306895 (Md. Ct. Spec. App. Dec. 22, 2015), cert. denied, 447 Md. 298 (2016).

C. The First Removal Action On May 14, 2013, about seven weeks after she filed the petition to caveat and a month after she filed the deed action, Mrs. Castruccio filed a petition in the orphans’ court to remove Mr. Greiber as special administrator of the estate.5 In response to the estate’s efforts to obtain discovery, Mrs. Castruccio denied access to Dr. Castruccio’s records and objected to every third-party subpoena that the estate served. At a hearing on July 11, 2013, Mrs. Castruccio voluntarily withdrew the petition after the orphans’ court excluded her expert witness as a discovery sanction. The orphans’ court denied the petition for removal on July 16, 2013. 5 The petition to caveat had “the effect of a request for judicial probate.” See ET § 5-207(b)(1). By operation of law, Mr. Greiber became the special administrator of the estate after Mrs. Castruccio filed her caveat action.

See ET § 6-307(a)(1) (appointment as personal representative ends upon filing of timely petition for judicial probate); ET § 6- 401(a) (authorizing the appointment of a special administrator upon the termination of the appointment of a personal representative). 6 D. The Will Construction Action Although Mrs. Castruccio contended that her husband’s will was invalid, she filed another circuit court action on January 16, 2014, in which she sought a declaration that she (rather than Ms. Barclay) was the residuary beneficiary under the will. The circuit court stayed the action on May 8, 2014, pending the outcome of the caveat action, because it made little sense to interpret the will while its validity was being challenged. The court lifted the stay in June 2015, after its ruling in the caveat action, and the parties proceeded to conduct discovery and to file cross-motions for summary judgment. On January 6, 2017, the court granted the estate’s motion for summary judgment, denied Mrs. Castruccio’s cross-motion for summary judgment, and declared that Ms. Barclay was the residuary beneficiary under the will.

This Court affirmed the circuit court’s judgment, and the Court of Appeals denied Mrs. Castruccio’s petition for a writ of certiorari. See Castruccio v. Estate of Castruccio, 239 Md. App. 345 (2018), cert. denied, 463 Md. 149 (2019). E. The “Emergency” Second Removal Action On April 22, 2014, less than a year after her defeat in the first removal action, Mrs. Castruccio filed an “emergency” second petition in the orphans’ court to remove Mr. Greiber as special administrator. Mrs. Castruccio asked the orphans’ court to transmit the petition to the circuit court, but the orphans’ court refused.

Mrs. Castruccio appealed that decision to the circuit court and argued that her appeal divested the orphans’ court of jurisdiction to hear her petition. When the orphans’ court directed the hearing to proceed as scheduled despite the appeal, Mrs. Castruccio 7 refused to participate. Consequently, the orphans’ court denied the petition on August 26, 2014. In addition, the orphans’ court ordered Mrs. Castruccio to pay the costs and attorneys’ fees that the estate incurred in opposing “the frivolous emergency petition.” On January 9, 2015, in Mrs. Castruccio’s de novo appeal, the circuit court granted the estate’s motion for summary judgment and ordered Mrs. Castruccio and her attorneys to pay the estate’s attorneys’ fees.

On May 1, 2015, however, the circuit court amended its order to exclude the award of attorneys’ fees. The court expressed some concern about the fees (“this is just getting out of whack, this whole case with attorney’s fees”), but it appears to have decided not to award fees in this case because it had already decided to award them in yet another case – the contempt action, discussed below.6 Both sides appealed, and this Court affirmed the circuit court’s amended judgment. Estate of Castruccio v. Castruccio, No. 623, Sept. Term 2015, 2017 WL 2953963 (Md. Ct. Spec. App. July 11, 2017).

F. The Contempt Action In the months after Dr. Castruccio’s death, Mrs. Castruccio interfered with Mr. Greiber’s ability to comply with his statutory right and obligation to “take possession or control of the estate of the decedent” (see ET § 7-102(a)) by denying him access to Dr. Castruccio’s office and records. In response, the estate moved for an order requiring Mrs. Castruccio and her counsel to give the estate and its counsel access to Dr. Castruccio’s properties and records. The orphans’ court granted the motion on July 16, 6 “And they’ll be [sic] no attorney’s fees in this case because we have it in the other case,” the court said. 8 2013. When Mrs. Castruccio and her counsel failed to comply with the order, the estate filed a petition for an order requiring her and her counsel to show cause why the court should not hold them in contempt.

On July 3, 2014, the orphans’ court found that Mrs. Castruccio had willfully violated the order, held her in civil contempt, and ordered her to pay all of the costs and attorneys’ fees that the estate had incurred in prosecuting the contempt action. Mrs. Castruccio filed a de novo appeal to the circuit court, which also held Mrs. Castruccio in civil contempt and ordered her to pay the estate’s costs under Md. Rule 1- 341 and Md. Rule 6-141. On further appeal, however, this Court vacated the circuit court’s decision, because the order lacked an appropriate purge provision, and because the court did not make the required findings to support the attorneys’ fee award. See Castruccio v. Estate of Castruccio, No. 862, Sept. Term 2015, 2016 WL 7496178 (Md. Ct. Spec.

App. Dec. 20, 2016). Nonetheless, this Court remarked that our decision did not “suggest that [Mrs. Castruccio] was not, in fact, in contempt.” Id. at ⁸. “[T]he errors . . . [lay] in the absence of written findings and in the structure of the sanction, not in the decision to find [Mrs. Castruccio] in contempt.” Id.7 7 On remand, the circuit court found Mrs. Castruccio in constructive civil contempt and set a “fine” of $10,000.00. In addition, the court granted the estate’s request for attorneys’ fees for prosecuting the action. On appeal, however, this Court vacated the contempt finding and the fee award and remanded the case for further proceedings because the circuit court did not hold an evidentiary hearing to determine whether Mrs. Castruccio “willfully” violated the access order.

See Castruccio v. Estate of Castruccio, No. 1651, Sept. Term 2017, 2019 WL 626172 , at ¹⁰ (Md. Ct. Spec. App. Feb. 14, 2019). 9 G. The Settlement Attempts The undisputed facts in the record disclose that the estate made several attempts to avoid the costs of litigation by settling Mrs. Castruccio’s claims. The attempts failed because of Mrs. Castruccio’s unwillingness to settle. On September 9, 2013, when Mrs. Castruccio’s first several actions were still in an early phase, counsel for the estate wrote to the attorneys for Ms. Barclay and Mrs. Castruccio to propose that all parties agree to stay the proceedings and begin settlement negotiations to avoid further legal fees and expenses.

Ms. Barclay agreed to stay the proceedings, but Mrs. Castruccio did not respond. In February 2014, the parties participated in court-ordered mediation, but were unable to reach an agreement. Counsel for Mrs. Castruccio refused to stay the proceedings to continue the negotiations. In June 2014, counsel for the estate continued to initiate settlement efforts by asking the attorneys for Ms. Barclay and Mrs. Castruccio to agree to a numerical range within which the parties could negotiate.

Ms. Barclay’s counsel provided a range, but Mrs. Castruccio’s counsel would not. Instead, he reiterated the final demand from the earlier mediation and stated that there would be no settlement. In March 2015, the court granted the parties’ joint request for a 30-day continuance to negotiate a settlement in all proceedings. Mrs. Castruccio hired new counsel, and on May 13, 2015, all parties met to negotiate.

The parties made significant progress towards a resolution at the meeting. A few days later, however, Mrs. Castruccio rehired her previous counsel and decided not to proceed with any further settlement 10 discussions. The estate continued to make settlement overtures and met with Mrs. Castruccio’s counsel in July 2016, but the meeting was unproductive. The parties have not engaged in any further settlement discussions since.

H. The Interim Petition for Attorneys’ Fees ET § 7-603 states that, “[w]hen a personal representative or the person nominated as personal representative defends or prosecutes a proceeding in good faith and with just cause,” he or she “shall be entitled to receive necessary expenses and disbursements from the estate regardless of the outcome of the proceeding.” “The compensation shall be fair and reasonable in the light of all the circumstances to be considered in fixing the fee of an attorney.” ET § 7-602(b)(2). On April 15, 2015, the estate filed its interim petition for attorneys’ fees, expert witness fees, mediation fees, and out-of-pocket litigation and trial expenses in the orphans’ court.8 The petition covered the period from March 1, 2013, through March 15, 2015. The estate claimed to have incurred $1,934,061.00 in attorneys’ fees and $262,421.20 in expenses during that time. Later, the estate reduced the request to 8 To be precise, the petition was filed by Mr. Greiber in his capacity as personal representative and by both of the firms that represented him.

For ease of reference, we shall refer to the petitioners as “the estate.” In doing so, we recognize that an “estate” is technically just a collection of assets and liabilities and not a juridical entity like a corporation or an LLC. Castruccio v. Estate of Castruccio, 230 Md. App. 118 , 124 n.3 (2016), aff’d, 456 Md. 1 (2017). 11 $1,694,275.50 in fees and $242,760.43 in expenses.9 Mrs. Castruccio filed exceptions to the fee petition. Among other things, she argued that Mr. Greiber, as special administrator, was required to obtain the orphans’ court’s approval to hire DLA, but had not done so. Consequently, she argued that DLA’s fees could not be paid out of the estate.

Ms. Barclay filed an exception seeking to shift the fees to Mrs. Castruccio’s elective share of the estate because of her alleged bad faith during the litigation.10 After hearings on the petition, the orphans’ court denied both exceptions and granted the petition on December 31, 2015. Ms. Barclay and Mrs. Castruccio filed de novo appeals of the orphans’ court’s order to the Circuit Court for Anne Arundel County. The circuit court held a six-day trial on the petition from January 24 to January 31, 2017. The judge who presided over the trial had had little or no direct involvement in any of the litigation concerning the estate.

At trial, the estate introduced expert testimony from Benjamin Rosenberg, a distinguished member of the Maryland bar, concerning the reasonableness of the rates that the lawyers charged and the necessity of the services that they rendered. Mr. 9 On the basis of information that was apparently disclosed in discovery, the estate claimed that Mrs. Castruccio had incurred over $787,000.00 in fees through July 2, 2015. That figure included the fees billed by three of the firms that had represented Mrs. Castruccio, but did not include any additional fees that she might owe to her lead counsel. 10 Although Ms. Barclay contended that Mrs. Castruccio had no right to any part of the estate under the will, Mrs. Castruccio, as the surviving spouse, had the right to “elect[] against the will” (Green v. Nassif, 426 Md. 258, 281 (2012)) and to receive half of the net estate under ET § 3-203(b)(2). Ms. Barclay sought to require Mrs. Castruccio to pay the estate’s fees out of her elective share. 12 Rosenberg’s testimony was uncontroverted.

On June 26, 2018, the circuit court entered a memorandum opinion and order approving an interim award of attorneys’ fees and expenses to be paid from the estate’s assets. Reasoning that the proposed fees were only “partially fair, reasonable, and necessary,” the court approved fees in the total amount of $785,370.00: $215,635.00 for Cawood & Cawood and $569,735.00 for DLA. The court further approved trial expenses in the total amount of $214,028.14: $127.50 to be paid to Cawood & Cawood and $213,900.64 to DLA. In total, the court approved less than 50 percent of the requested fees and about 80 percent of the requested expenses.

The circuit court explained its reasoning for the award in a lengthy memorandum opinion. In that memorandum, the court first addressed Mrs. Castruccio’s argument that, as a special administrator, Mr. Greiber needed court approval before hiring DLA as counsel for the estate. The court determined that Mr. Greiber had the authority to hire counsel to defend against litigation under the special administrator’s power “to collect, manage, and preserve” the estate’s property (see ET § 6-403(b)(2)) and, therefore, did not require court approval. The court rejected Ms. Barclay’s claim of Mrs. Castruccio’s bad faith and found that Mrs. Castruccio’s several lawsuits were not meritless.

The court further found that the estate had generally acted in good faith and with just cause, as required by ET § 7-603, in defending against Mrs. Castruccio’s actions. The court found, however, that the estate was not justified in pursuing attorneys’ fees 13 from Mrs. Castruccio and her lawyers in the second removal action. The court also found that the estate had not benefitted from the unsuccessful prosecution of the contempt action.11 Accordingly, the court held that it would deny any fees requested for that action. The court omitted to note, however, that the estate sought no fees in connection with the contempt action.

The circuit court proceeded to discuss whether the fees requested by the estate were fair, reasonable, and necessary. The court first considered the hourly rates charged by each of the estate’s attorneys. On the basis of its asserted knowledge of the rates commonly charged in Anne Arundel County, the court determined that Mr. Cawood’s rate ($350.00 per hour) was reasonable, but that the rates charged by the DLA attorneys were excessive.12 Consequently, the court reduced the average rate charged by the DLA lawyers and paralegals. Most notably, the court reduced the rate charged by Mr. Stiller from $750.00 per hour to $450.00 per hour, reduced the rate charged by Mr. Ingerman from $725.00 per hour to $350.00 per hour, and reduced the rate charged by Ms. Mackiewicz from $500.00 per hour to $350.00 per hour. 11 In this regard, the court asserted that the estate’s lawyers “knew or should have known” that the court’s own rulings were “not sustainable” and “predictably” would be “reversed by the Court of Special Appeals.” 12 The court had information concerning the fees charged by most of the many lawyers who had represented Mrs. Castruccio.

One, a former circuit court judge, billed at the rate of $400.00 per hour; another, a prominent estates and trusts practitioner, billed at the rate of $375.00 per hour. The court had no information about the billing rate of Mrs. Castruccio’s lead counsel. 14 The circuit court then considered the reasonableness of the hours billed and expenses charged for each action. For the caveat and will construction actions, the court determined that all of the time expended (507.5 billed hours) was reasonable and necessary. Consequently, the court approved the requested fees, albeit at the reduced rates that it had imposed.

By contrast, for the deed action, which involved the most work on behalf of the estate, the court found that the attorneys had billed an excessive amount of time. Although the court recognized that the estate had “secured a favorable result,” it took issue with the amount of time spent on an unsuccessful motion for summary judgment and on motions in limine, most of which had been denied. In addition, the court remarked that the “level of adversity between counsel” contributed to “excessive” billing in matters of discovery. The court seems to have envisioned that Mr. Cawood should have functioned as lead counsel in the deed action and that DLA’s role should have been limited to “providing support” to him.

On these bases, the court reduced the total number of hours billed from 2067.1 to 1284.1. It approved the reduced number of hours at the reduced rates that it had imposed. On the premise that Mr. Cawood was capable of handling the first removal action by himself, the court eliminated all of the time billed by Mr. Ingerman (38.7 hours) and almost half the time billed by Ms. Mackiewicz (allowing 38.7 of the 73.4 hours billed). The court criticized the lawyers for exchanging over 19,000 documents in discovery and for identifying witnesses and exhibits that, it said, they “apparently” did not use.

Additionally, the court complained that three lawyers attended the hearing at which Mrs. 15 Castruccio sought to remove Mr. Greiber. The court did not note that the lawyers’ pretrial preparation led to Mrs. Castruccio’s capitulation, after the orphans’ court excluded her expert witness as a sanction for her discovery abuses. For the second removal action in the orphans’ court, the court proceeded again on the premise that Mr. Cawood was largely capable of handling the proceeding on his own. Consequently, the court eliminated 15 of the 40 hours billed by Ms. Mackiewicz, calling them unreasonable, unnecessary, and duplicative.

For Mrs. Castruccio’s two appeals of the second removal action, the court found that the estate spent too much time attempting to obtain and preserve the award of attorneys’ fees against Mrs. Castruccio and her counsel. For that reason, the court denied all 164.8 hours billed by DLA and awarded only 20 (of the 34.4) hours billed by Mr. Cawood.13 Lastly, the court considered hours in the attorneys’ bills that it could not “identify as to relating to specific matters.” The court approved 426.9 of the 534.9 billed hours without providing an explanation for its decision.14 In total, the court approved only $785,370.00 of the $1,694,275.50 in fees requested by the estate. The court also approved only $214,028.14 of the $262,421.20 in expenses requested by the estate. 13 As it did earlier in its opinion, the court faulted the estate’s lawyers for defending the court’s own rulings and failing to foresee that those rulings would not stand up on appeal. 14 Though the court listed the total approved hours as 226.9, the court’s calculation of the approved hours for each attorney shows that it approved 426.9 hours. 16 The estate and Ms. Barclay noted timely appeals. Mrs. Castruccio noted a timely cross-appeal.

QUESTIONS PRESENTED The parties present several questions, which we have consolidated and rephrased for brevity.15 In Mrs. Castruccio’s cross-appeal, she asks the following questions: I. Did the court err in concluding that Mr. Greiber as special administrator of the estate had the authority to hire counsel to represent the estate?

II

Was the estate’s petition for attorneys’ fees deficient because it did not estimate the fees to be requested in the future?

III

Did the court err in awarding attorneys’ fees for the estate’s participation in the will construction action? In the estate’s appeal, it asks the following questions: I. Did the court err in reducing the estate’s attorneys’ hourly rates because they were inconsistent with the customary fees charged for similar services in Anne Arundel County?

II

Did the court abuse its discretion in significantly reducing the hours billed by the attorneys for the estate? In Ms. Barclay’s appeal, she asks the following questions: I. Did the court fail to apply the correct legal standard to her request to shift the legal fees to Mrs. Castruccio’s share of the estate?

II

Did the court err in finding that Mrs. Castruccio did not act in bad faith during the litigation?

III

Did the court err by excluding testimony regarding statements that Mrs. Castruccio made during a settlement negotiation? 15 The parties’ full questions are reproduced in Appendix A. 17 For the reasons stated in this opinion, we shall hold that the circuit court did not err or abuse its discretion in denying Mrs. Castruccio’s exceptions or Ms. Barclay’s exceptions to the fee petition. We shall also hold, however, that the court abused its discretion in determining the appropriate award of attorneys’ fees and expenses that may be paid from the assets of the estate. Consequently, we shall affirm the judgment in part, vacate it in part, and remand the case for further proceedings consistent with this opinion. DISCUSSION This discussion shall first address Mrs. Castruccio’s cross-appeal of the circuit court’s decision to award attorneys’ fees for DLA’s work.

We shall then discuss the estate’s appeal of the circuit court’s calculation of the fee award. Lastly, we shall address Ms. Barclay’s appeal of the court’s refusal to apportion the attorneys’ fees to Mrs. Castruccio’s share of the estate. I. Entitlement to Attorneys’ Fees from the Estate Mrs. Castruccio asserts three bases on which, she says, the court erred in awarding any fees for DLA’s work. First, she contends that Mr. Greiber needed court approval to hire DLA as the estate’s counsel because he was a special administrator, and not the personal representative.

Next, she argues that the petition for fees was legally deficient because it did not estimate the fees that the law firms would request in the future. Third, she claims that the circuit court improperly allowed fees for work that did not benefit the estate. For the reasons discussed herein, we reject these arguments. 18 A. The Special Administrator’s Power to Hire Counsel Without Court Approval On March 27, 2013, Mrs. Castruccio filed a petition for caveat. Consequently, Mr. Greiber’s status changed from personal representative to special administrator of the estate under ET § 6-307.16 Although Mr. Greiber repeatedly requested the orphans’ court’s approval of his decision to engage DLA, the orphans’ court never formally acted on those requests.

It has long been understood that the fiduciary of an estate may engage counsel without court approval. See, e.g., Ward v. Koenig, 106 Md. 433, 437 (1907); see also Piper Rudnick LLP v. Hartz, 386 Md. 201, 237 (2005) (holding that a personal representative had the authority to engage counsel under the testator’s will and under ET § 7-401(a), which permits a personal representative to “exercise all of the power or authority conferred upon the personal representative by statute or in the will, without application to, the approval of, or ratification by the court”). Under Dr. Castruccio’s will, Mr. Greiber was “authorized to enforce, compromise and/or litigate any claim against or in favor” of the estate, which presumably includes the power to engage counsel to achieve those ends. Nonetheless, Mrs. Castruccio contends that, once Mr. Greiber was transformed into a special administrator by the filing of the petition to caveat, he had no power to 16 Under ET § 6-307(b), “[s]ubject to an order in the proceeding for judicial probate, a personal representative appointed previously has the powers and duties of a special administrator until the appointment of a personal representative in the judicial probate proceeding.” 19 engage DLA without the orphans’ court’s approval.

For that reason, she contends, the court could not authorize the payment of DLA’s fees from the assets of the estate. Mrs. Castruccio bases her argument on ET § 6-403(b), which states that a special administrator “(1) Shall assume all duties unperformed by a personal representative imposed under Title 7, Subtitles 2, 3, and 5 of this article; and (2) Has all powers necessary to collect, manage, and preserve property.” Other powers may be “designated from time to time by court order.” ET § 6-403(c). Mrs. Castruccio observes that Subtitle 4 of Title 7 of the Estates and Trusts Article gives a personal representative the power to prosecute or defend actions, claims, or proceedings. See ET § 7-401(y).

On the premise that a special representative assumes only the “duties unperformed by a personal representative imposed under Title 7, Subtitles 2, 3, and 5,” Mrs. Castruccio asserts that a special representative has no powers other than those granted in Subtitles 2, 3, and 5. Because the power to prosecute or defend actions, claims, or proceedings is granted in Subtitle 4, Mrs. Castruccio concludes that Mr. Greiber, as special administrator, would possess that power only if the orphans’ court granted it to him, which it did not. Mrs. Castruccio’s argument conflates “duties” and “powers.” A “duty” is an action that special administrators are required to perform as part of their role. See Duty, BLACK’S LAW DICTIONARY (11th ed. 2019) (“[a] legal obligation that is owed or due to another and that needs to be satisfied; that which one is bound to do, and for which somebody else has a corresponding right”).

A “power” is an action that special administrators may perform as part of their role. See Power, BLACK’S LAW DICTIONARY 20 (11th ed. 2019) (“[t]he legal right or authorization to act or not act”). Under ET § 6- 403(b), special administrators assume the personal representative’s unperformed duties under Subtitles 2, 3, and 5 and have the powers necessary to collect, manage, and preserve property. Therefore, although ET § 6-403(b)(1) imposes the duties conferred in Subtitles 2, 3, and 5 of Title 7 on the special administrator, it does not limit the special administrator’s powers to those granted in those three subtitles.

Under the power to “collect, manage, and preserve property,” granted in § 6-403(b)(2), a special administrator may prosecute and defend litigation on behalf of the estate. It follows that a special administrator may engage counsel to prosecute and defend litigation on behalf of the estate, without court approval.17 The legislative history of the statute further indicates that § 6-403 does not limit the powers of a special administrator. The original version of the statute, which was enacted in 1974, stated: “A special administrator has all powers necessary to collect, 17 In advocating a contrary conclusion, Mrs. Castruccio relies on what she admits is dicta in Banashak v. Wittstadt, 167 Md. App. 627, 653 (2006). In that case, this Court cited ET § 6-403(b) for the proposition that “the conferring of duties and powers on the special administrator is confined to those spelled out in Subtitles 2, 3, and 5 of Title 7 and does not include those conferred by Subtitle 4,” including the power to prosecute and defend litigation.

Accordingly, this Court suggested that, “to engage in litigation and . . . to incur legal fees to that end,” a special representative must “rely on the granting of ‘other powers designated from time to time by court order’ pursuant to § 6-403.” Id. This Court’s statements were incorrect, because § 6-403 does not limit a special administrator’s powers to those contained in Subtitles 2, 3, and 5 of Title 7 of the Estates and Trusts Article. The incorrect statements were, however, unnecessary to the decision, because the case holds only that the appeal was premature and therefore that this Court had no appellate jurisdiction. Id. at 659. 21 manage and preserve property.” 1974 Md. Laws ch. 11, at 108.

In 1980, the General Assembly amended the statute by adding the language that the special administrator “shall assume all duties unperformed by a personal representative imposed under Subtitles 2, 3, and 5 of Title 7.” 1980 Md. Laws ch. 42, at 757. This amendment affected only the “duties” of the special administrator, as the language concerning the “powers” was left unchanged. In a letter in support of the 1980 amendment, the Estate and Trust Law Section of the Maryland State Bar Association stated that the amendment would “simply require[]” the special administrator to carry out duties imposed onto a personal representative under Subtitles 2, 3, and 5, such as filing inventories and notices, but “[i]n all other respects, Section 6-403 would remain unchanged.” See Letter from Earl S. Wellschlager, to Senator J. Joseph Curran, Jr., dated Oct. 9, 1979 (emphasis added).18 The letter explains that the amendment was necessary because “existing law [did] not impose upon the special administrator any duty to account for the property of the estate . . . or to carry out any unperformed duties of a personal representative.” Id. 18 The letter indicates that the Estate and Trust Section drafted the legislation and provided it to Senator Curran, the chairman of the Senate Judicial Proceedings Committee, who sponsored the bill as SB 88. According to the bill’s legislative history, the author of the letter was the only witness to testify about the bill in front of the Judicial Proceedings Committee.

A copy of the letter is attached to this opinion as Appendix B. 22 Section 6-403, accordingly, does not limit the powers of a special administrator, as Mrs. Castruccio contends. The circuit court, therefore, did not err in determining that Mr. Greiber had the authority to hire counsel for the estate litigation without court approval.19 B. The Sufficiency of the Petition for Attorneys’ Fees Maryland Rule 6-416(a)(1)(B) mandates that a petition for attorneys’ fees state “the amount of fees or commissions that the petitioner reasonably estimates will be requested in the future.” In its petition, however, the estate declined to make an estimate of future fees, stating that it could not, at that time, “identify the amount of fees or commissions it reasonably estimates will be requested in the future.” The petition cited the many matters decided by or pending before the orphans’ court at the time and the several appeals that Mrs. Castruccio initiated on those matters. Mrs. Castruccio argues that the petition for attorneys’ fees was deficient because it did not estimate the fees that the estate would request in the future. In view of that omission, she argues that Mr. Greiber has forfeited the right to use the estate’s assets to pay his attorneys’ fees.

In the unusual circumstances of this case, we conclude that the estate substantially complied with Rule 6-416(a)(1)(B) when it explained its inability to make a reliable, good faith estimate of future fees. On April 16, 2015, when the estate filed the fee petition, Mrs. Castruccio had appeals pending in no fewer than four separate proceedings: the caveat action, the deed 19 Even if the special administrator was obligated to obtain the orphans’ court’s approval to engage DLA, which he was not, one could infer that the orphans’ court approved the engagement, nunc pro tunc, when it approved a petition to pay over a million dollars in fees to DLA. 23 action, the contempt action, and the second removal action. Meanwhile, the will construction action had been stayed, but would spring back to life if the appellate courts affirmed the entry of summary judgment against Mrs. Castruccio in the caveat action (as they eventually did). Hence, to estimate the future fees at the time when Mr. Greiber filed the fee petition, he would have had to forecast the cost of defending four appeals, including the potential costs if the Court of Appeals granted certiorari in one or more of them.

He would also have had to account for the possibility of reversal in one or more of the appeals, as well as the possibility of additional costs in the event of remand. Finally, he would have had to predict the cost of pursuing the will construction action, through discovery and a potential trial, as well as two potential levels of appeal. In view of the array of uncertainties that lay before them at the time, it is unsurprising that Mr. Greiber and his attorneys confessed their inability to make a meaningful estimate of the future fees. An estimate would have been little more than a guess.

In theory, the estate could have waited until all of the litigation was finally over before petitioning for fees. In that case, the estate would not have been required to make an estimate of future fees. The attorneys, however, would have to work for an indeterminate amount of time (it has now been more than seven years) without compensation. In our view, it would be unreasonable to require the estate to follow that course.

This is not an ordinary case in which the fiduciary of an estate engages counsel to perform a discrete task – e.g., to defend against a creditor’s claim (Wright v. Nuttle, 267 24 Md. 698 , 699-700 (1973)), to defend a caveat action alleging undue influence (Fields v. Mersack, 83 Md. App. 649, 651-52 (1990)), or to foreclose on a mortgage (Ward v. Koenig, 106 Md. at 434 ). This case involves a welter of complex and interrelated litigation. It is often difficult to predict what will occur in any litigation, and those difficulties were multiplied many times in this engagement. “The law, in its majesty, is not designed to require futile action or idle gestures.” Clark v. Wolman, 243 Md. 597, 600 (1966). Where the fiduciary of a decedent’s estate cannot make a reasonable, good faith estimate of the likely future fees, as it is in this unusual case, it is futile to require one to be made.

For that reason, we conclude that the circuit court did not err in awarding fees in this case despite the absence of an estimate of future fees. C. The Fees Incurred in the Will Construction Action Are Compensable Citing Mudge v. Mudge, 155 Md. 1, 3-4 (1928), Mrs. Castruccio argues that a court may authorize the payment of attorneys’ fees out of the assets of an estate only for work that is “beneficial to the estate, either by the enlargement or the protection of it, and not where the only question to be decided is to whom the estate, or any part of it, shall go and in what proportions.” Mrs. Castruccio argues that Mr. Greiber’s participation in the will construction action did not benefit the estate. Instead, she argues that his participation simply benefitted one claimant (Ms. Barclay) at the expense of another (her), by deciding which of them was the residuary beneficiary. Hence, she concludes that under Mudge v. Mudge the court could not properly award any fees for work done in connection with the will construction action. 25 Mudge v. Mudge is not good law.

In Piper Rudnick LLC v. Hartz, 386 Md. at 217 , the Court of Appeals held that “there is no statutory independent or separate requirement contained within [ET] § 7-603 that the personal representative benefit the estate” before a court may allow the payment of attorneys’ fees out of the assets of the estate. See also id. at 218 (stating that ET § 7-603 “does not include an independent ‘benefit to the estate’ requirement”); id. at 228 (stating that “there is no ‘for the protection or benefit of the estate’ requirement in [ET] § 7-603”). ET § 7-603, which was enacted after Mudge, contains only two conditions: “(1) the defense or prosecution must be ‘in good faith and with just cause,’ and (2) the expenses and disbursements must be ‘necessary.’” Piper Rudnick LLC v. Hartz, 386 Md. at 218 . “[W]hile § 7-603 does not contain an independent ‘benefit to the estate’ requirement, that concept is a factor to be considered in the objective inquiry into whether the personal representative acted in good faith and with just cause.” Id. at 232. “The concept of benefit to the estate is,” however, “not limited to monetary benefits.” Id. at 233. “A personal representative acts to benefit the estate when he or she seeks to effectuate the testator’s intent.” Id. at 233-34. Thus, for example, the Court of Appeals upheld the award of attorneys’ fees, from the assets of the estate, for the successful defense against an action to remove the personal representative.

Id. at 236. In those circumstances, “[t]he personal representative is not acting out of personal interest, but rather is acting to benefit of the estate” by effectuating the testator’s intent as to who the fiduciary of the estate should be. Id. 26 Similarly, the fiduciary of an estate seeking to “effectuate the testator’s intent” when defending against challenges to the fiduciary’s reasonable, good faith construction of the will. Though Maryland has not yet expressly acknowledged this principle, other state courts widely hold that a personal representative who participates in a will construction action is acting to benefit the estate and is entitled to attorneys’ fees.

See In re Estate of Thorp, 669 N.E.2d 359, 364-65 (Ill. App. Ct. 1996) (upholding award of attorneys’ fees to the attorney who had represented the executrix of an estate in an action by the executrix to construe an ambiguous will); In re Succession of Bernat, 76 So.3d 1287, 1292 (La. Ct. App. 2011) (holding that a fiduciary has a duty to defend the validity of the testator’s will and that the costs incurred in a will contest should be paid out of the estate); In re Estate of Torgersen, 711 N.W.2d 545, 555 (Minn. Ct. App. 2006) (recognizing that “an estate as an entity is benefited when genuine controversies as to the validity or construction of a will are litigated and finally determined”); Humane Soc’y of Austin & Travis Cty. v. Austin Nat’l Bank, 531 S.W.2d 574, 581 (Tex. 1975) (holding that the executor had a duty to determine the testatrix’s intent in order to appropriately distribute the estate assets and, therefore, the executor was entitled to attorneys’ fees paid from the estate); see also 2 Robert L. Rossi, Attorneys’ Fees § 11:56 (3d ed. 2019); 80 Am.

Jur. 2d Wills § 1271 (2019). As personal representative, Mr. Greiber acted to effectuate Dr. Castruccio’s testamentary intent by defending against Mrs. Castruccio’s challenge to the construction of the will. Mr. Greiber, therefore, acted “in good faith and with just cause” in that 27 matter. Accordingly, the circuit court correctly awarded the payment of attorneys’ fees, from the assets of the estate, for the will construction action.

II

The Circuit Court Erroneously Reduced the Attorneys’ Fee Award The estate disputes two aspects of the circuit court’s awards of fees and expenses. First, it contends that the court impermissibly reduced the already-discounted hourly rates charged by DLA. Second, the estate argues that the court erroneously deemed a large portion of its work unnecessary. Appellate courts review a trial court’s attorneys’ fees award under the abuse of discretion standard.

Monmouth Meadows Homeowners Ass’n, Inc. v. Hamilton, 416 Md. 325, 332-33 (2010) (citing Myers v. Kayhoe, 391 Md. 188, 207 (2006)). A court may abuse its discretion when awarding attorneys’ fees if it “adopts a position that no reasonable person would accept.” Pinnacle Grp., LLC v. Kelly, 235 Md. App. 436, 476 (2018) (quoting Letke Sec. Contractors, Inc. v. U.S. Sur. Co., 191 Md. App. 462, 474 (2010)) “[T]he trial court’s determination of the [r]easonableness of [attorney’s] fees is a factual determination within the sound discretion of the court, and will not be overturned unless clearly erroneous.” Royal Inv. Grp., LLC v. Wang, 183 Md. App. 406, 457 (2008).20 20 A trial court has discretion to determine an appropriate fee in part because of its “superior understanding of the litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

In this case, however, the judge who handled the fee petition had little or no direct involvement in any of the litigation pertaining to the Castruccio estate besides the fee petition itself. In these circumstances, one might question the extent to which a deferential abuse of discretion standard is truly appropriate to all aspects of the circuit court’s decision. On the other hand, we also “give deference to the [circuit] court because we wish to avoid protracted litigation over fees and because strict uniformity in 28 A. DLA’s Hourly Rates The estate contests the circuit court’s decision to reduce the hourly rates of most of the DLA attorneys by approximately a third. In a series of related arguments, the estate contends that the court erred or abused its discretion in allowing the estate to reimburse the attorneys only at the lower rates that the court found, in its experience, to be the “customary” rates in Anne Arundel County.

Although we disagree with many of the arguments that the estate has brought to bear, we agree that, on the record in this case, there was no basis to conclude that Mr. Greiber could have readily found an Anne Arundel County law firm with the resources and specialized experience to defend the estate against the sophisticated, multi-front legal offensive that Mrs. Castruccio was about to launch. For that reason, we conclude that the court abused its discretion in reducing DLA’s already-discounted fees. Accordingly, we shall vacate the attorneys’ fee award and remand the case to the circuit court for a determination of the fair and reasonable hourly rates in accordance with this opinion. 1. Rule 2-703 In determining the reasonable hourly rate for the estate’s various attorneys, the circuit court primarily relied on Md. Rule 19-301.5.

As other Maryland courts have done, we shall refer to Rule 19-301.5 as “Rule 1.5,” because it is derived from Rule 1.5 fee awards ‘is not so compelling as to justify a high level of scrutiny.’” Mathur v. Board of Trs. of S. Ill. Univ., 317 F.3d 738, 742 (7th Cir. 2003) (quoting Miller v. Artistic Cleaners, 153 F.3d 781, 784 (7th Cir. 1998)). Consequently, we shall assume, for purposes of this opinion, that the abuse of discretion standard applies. 29 of the American Bar Association’s Model Rules of Professional Conduct. See Brown & Sturm v. Frederick Rd.

Ltd. P’ship, 137 Md. App. 150, 179 (2001). Rule 1.5 sets forth a nonexclusive list of factors that are to be considered in determining the reasonableness of a fee, including “the fee customarily charged in the locality for similar legal services.”21 The circuit court placed a great deal of emphasis on that one factor in significantly reducing DLA’s fees. The estate argues that the circuit court used the wrong rule. According to the estate, the court should have used Md. Rule 2-703, which “applies to claims for attorneys’ fees allowable by law to a party in an action in a circuit court.” See Md. Rule 2-703(a).

Rule 2-703(f)(3) sets forth a number of factors for a court to consider in cases in which the rule applies. Many of these factors are common to both Rule 2-703 and Rule 1.5. Rule 2-703, however, does not require a court to consider “the fee customarily charged in the locality for similar legal services.” Instead, Rule 2-703 requires a court to 21 The list of factors enumerated Rule 1.5 is: (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 of the lawyer; (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; and (8) whether the fee is fixed or contingent. 30 consider “the customary fee for similar legal services,” without expressly tying the customary fee to the fee charged in “the locality,” as Rule 1.5 does.22 On the premise that Rule 2-703 applies in this case, the estate concludes that the court erred in considering the fees customarily charged in Anne Arundel County. We disagree with the premise that Rule 2-703 applies.

Rule 2-703 is one of a series of rules concerning claims for attorneys’ fees in Chapter 7 of Title 2 of the Maryland Rules. Those rules regulate claims for attorneys’ 22 The complete list of factors to be considered under Rule 2-703 is: (A) the time and labor required; (B) the novelty and difficulty of the questions; (C) the skill required to perform the legal service properly; (D) whether acceptance of the case precluded other employment by the attorney; (E) the customary fee for similar legal services; (F) whether the fee is fixed or contingent; (G) any time limitations imposed by the client or the circumstances; (H) the amount involved and the results obtained; (I) the experience, reputation, and ability of the attorneys; (J) the undesirability of the case; (K) the nature and length of the professional relationship with the client; and (L) awards in similar cases. 31 fees allowed by law, claims for attorneys’ fees allowed by contract as an element of damages, and claims for attorneys’ fees under a prevailing-party provision to a contract. Subject to a number of exceptions that are inapplicable here,23 Rule 2-703 and the other rules in that series “apply to actions in which, by law or contract, a party is entitled to claim attorneys’ fees from another party.” Md. Rule 2-702(a) (emphasis added); see also Md. Rule 2-703(b) (discussing the requirements of an initial pleading when a party “seeks attorneys’ fees from another party”) (emphasis added). In this case, however, the estate does not assert the right to claim attorneys’ fees from another party.

Rather, the fiduciary of the estate has requested the court’s permission to pay his own attorneys’ fees from the assets of the estate that he administers in trust for the beneficiaries. Rule 2-703, therefore, simply does not apply in this case. Furthermore, by its terms, Rule 2-703 applies to actions that begin in the circuit court. For example, Rule 2-703(b) addresses the contents of a circuit court pleading: “A 23 The rule does not apply to claims for attorneys’ fees: (1) in an action under Code, Family Law Article where an award of attorneys’ fees does not depend on the applicant’s having prevailed in the action or on any particular claim or issue in the action; (2) in a proceeding under Rules 1-341 or 2-433, or any other Rule permitting an award of reasonable attorneys’ fees as a sanction or remedy for the violation of a Rule or court order; (3) by an attorney for legal services rendered by the attorney to the attorney’s client; or (4) in an action to foreclose a lien under Title 14 of the Maryland Rules.

In determining the reasonableness of any requested fee in the proceedings enumerated in this section, the court may apply some or all of the evidentiary requirements and standards set forth in the Rules in this Chapter, as appropriate under the circumstances. Md. Rule 2-702(b). 32 party who seeks attorneys’ fees from another party pursuant to this Rule shall include a claim for such fees in the party’s initial pleading or, if the grounds for such a claim arise after the initial pleading is filed, in an amended pleading filed promptly after the grounds for the claim arose.” In addition, Rule 2-703(c) requires the court to issue a scheduling order that discusses, among other things, whether the claim for attorneys’ fees should be bifurcated from the merits and whether “any award of attorneys’ fees will be included in the judgment entered on the underlying cause of action or as a separate judgment.” None of those considerations apply to this case, because it did not begin in the circuit court, but arrived there by way of a de novo appeal from the orphans’ court. In short, Rule 2-703 did not govern the estate’s interim petition for attorneys’ fees. Consequently, the circuit court did not err in not employing the factors listed in Rule 2- 703 to evaluate the reasonableness of the requested hourly rates. 2.

The Lodestar Approach In the alternative, the estate argues that the circuit court should have used the so- called lodestar approach, instead of Rule 1.5, to evaluate its statutory claim for attorneys’ fees. Federal and state courts apply the lodestar approach to claims for attorneys’ fees under fee-shifting statutes,24 which “‘are usually designed to encourage suits that, in the judgment of the legislature, will further public policy goals.’” Monmouth Meadows Homeowners Ass’n, Inc. v. Hamilton, 416 Md. at 334 (quoting State v. Native Vill. of 24 See Friolo v. Frankel, 373 Md. 501, 521-27 (2003). 33 Nunapitchuk, 156 P.3d 389, 403 (Alaska 2007)). “A court’s application of the lodestar method in these cases ‘is designed to reward counsel for undertaking socially beneficial litigation in cases where the expected relief has a small enough monetary value that [other methods] would provide inadequate compensation.’” Id. at 334-35 (quoting Krell v. Prudential Life Ins. Co. of Am., 148 F.3d 283, 333 (3d Cir. 1998)). In actions under fee-shifting statutes under Maryland law, “the lodestar approach is ordinarily the appropriate one to use in determining a reasonable counsel fee.” Friolo v. Frankel, 373 Md. 501, 505 (2003).25 The lodestar approach contains two steps.

First, the court multiplies the number of hours expended on the litigation by a reasonable hourly rate. Friolo v. Frankel, 373 Md. at 523 . Second, the court considers several factors that might lead to an upward or downward