The Florida Bar
OPINION 88-1An attorney whose client has reneged on a fee agreement should not take action adverse to the client to enforce the agreement until the representation has been concluded, whether by withdrawal or by conclusion of the client's matter. If the client's breach of the fee agreement has made it impossible for the attorney to fulfill his obligation to place the client's interests ahead of his own, the attorney should seek to withdraw. An attorney should file suit against a client for fees only as a last resort.
(July 15, 1988)
(July 15, 1988)
RPC: 4-1.7(b), 4-1.16(b)(4), 4-1.16(c), 4-1.16(d)
Case: The Florida Bar v. Fields , 482 So.2d 1354 (Fla. 1986)
The inquiring attorney is currently representing a client against her former husband in a matter concerning, among other things, a motion for continuing writ of garnishment. At the time this representation was undertaken, an hourly fee was agreed upon. Client and attorney further agreed that, as the payments were received pursuant to the writ of garnishment, one half of each payment would go to the client and the other half would go to the attorney until his fees were paid in full. Additionally, it was agreed that if the court awarded attorney's fees to be paid by the former husband, any such fees collected would be credited against the fees paid or owed by the inquirer's client. However, on the day of the final hearing regarding the motion for continuing writ of garnishment, the client refused to sign an affidavit reflecting this agreement.
When the court granted the motion, the ex-husband's employer was ordered to send the garnishment checks to the attorney's trust account. The employer is instead sending the checks directly to the attorney's client. Further, the client is not complying with the agreement to pay the attorney one-half of each payment until the attorney's fees owed are fully paid. The hearing on the inquiring attorney's motion for attorney's fees and costs is set for September.
The inquiring attorney requests an opinion as to the ethically proper course of conduct to follow in light of the above facts. Specifically, he asks whether he should file a motion for contempt against the ex-husband's employer for sending the payments directly to the attorney's client rather than to his trust account as required by the court's order. He also asks whether he should withdraw from the representation and sue the client for the unpaid fees, or whether he should delay action of this type until after the September hearing on attorney's fees.
The attorney may not allow his personal interests to interfere with his ability to adequately represent his client. Furthermore, he may not take any action that might be contrary to his client's interests without her consent. Rule 4-1.7(b), Rules Regulating The Florida Bar. Accordingly, it would appear that the attorney should not file a motion to hold the employer in contempt. The client apparently is receiving the payments, so filing the motion would not advance the client's interests; in fact, it might be contrary to the client's interests if the attorney billed her for filing the motion. Of course, the motion could properly be filed with the client's consent.
Similarly, the attorney should not sue the client for fees while he is representing her.
The client's failure to fulfill her financial obligations to the attorney can furnish grounds for the attorney to withdraw from the representation after notifying his client of his intent to do so if the client fails to satisfy her obligations:
Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(4) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled[.]
Rule 4-1.16(b)(4). In the situation presented, the inquiring attorney may remain as counsel for his client until after the attorney's fees hearing if his personal interests will not adversely affect the representation. He could withdraw following the hearing if the client's financial obligations had not been satisfied.
However, if the client's failure to comply with the fee agreement has adversely affected the attorney's ability to zealously represent the client, then this conflict of interests requires that the attorney promptly attempt to withdraw. Of course, if a motion to withdraw is denied, the attorney is ethically obligated to "continue representation notwithstanding good cause for terminating the representation." Rule 4-1.16(c). Furthermore, upon withdrawal an attorney must take steps to avoid foreseeable prejudice to the client as required by Rule 4-1.16(d).
There are situations in which suing a former client for unpaid fees may be necessary as a "last resort." Before instituting suit, the attorney should attempt to resolve the matter amicably. See The Florida Bar v. Fields , 482 So.2d 1354 (Fla. 1986). But if the inquiring attorney is put in such a situation, he is not ethically precluded from suing the client for the unpaid fee.