The Florida Bar
A lawyer who represented a client in a dissolution of marriage case is not obligated to further represent the client in enforcing the judgment entered in the dissolution proceeding if there was no prior agreement between attorney and client to pursue post-judgment remedies. A lawyer representing a client in post-judgment matters should not communicate directly with the opposing party unless he has ascertained for a fact that the party is no longer represented by counsel.
November 17, 1977
November 17, 1977
CPR: Canon 2; DR 2-110; Canon 7; DR 7-101(A)(2)
Opinions: 65-3, 76-21
Mr. Mead stated the opinion of the committee:
This opinion addresses the following inquiries:
1. After representing a client in a dissolution of marriage case, does an attorney have a continuing obligation to represent that party in enforcing the judgment entered in the dissolution proceeding?
2. Once a final judgment of dissolution of marriage has been entered, does the attorney for one party who is seeking further assistance for his client have an obligation to contact the opposing party through his or her counsel of record, or may he contact the opposing party directly?
Inquiry #1 appears to be one of first impression, and the Committee is not unanimous in its response. For purposes of answering this question, we have assumed that no petition for rehearing was filed and that the appeal period has expired. Although this does not automatically terminate the attorney/client relationship between the party and his lawyer if there is some prior agreement on the part of the attorney to pursue postjudgment remedies, we feel that otherwise he has no obligation to do so. There is no Ethical Consideration or Disciplinary Rule on point; since we believe that under normal circumstances the attorney/client relationship no longer exists, DR2-110 (Withdrawal from Employment) does not apply. Canon7, which requires the zealous representation of a client, also presumes the existence of such a relationship. While we recognize that the attorney's familiarity with the file may cause the client some inconvenience if the lawyer declines to undertake representation for postju dgment relief, in view of the extensive enforcement proceedings which are quite common in dissolution cases and which often drag on for years, the attorney should not be put in a position of being perpetual counsel when he does not choose to do so. No one would contest the fact that the client is free to select another lawyer to enforce the judgment and, absent a contract of continuing employment, it would seem that this freedom of choice should be mutual.
A minority of the Committee is of the opinion that a lawyer does have a continuing duty to assist his client in enforcing a judgment obtained in a dissolution of marriage case. Under this view, at the very least the attorney has an obligation to represent the client in the matter for a reasonable time after the entry of a final judgment. This minority feels that the refusal of the lawyer to handle a postjudgment action arising within such reasonable time would constitute abandonment of his client.
The importance of the contractual relationship between the attorney and client deserves special consideration here. DR 7-101(A)(2) states that a lawyer shall not intentionally fail to carry out a "contract of employment" and, although interpretation of the law is not the province of this Committee, the existence of such a contract is fundamental to the inquiry at hand. Based on the facts presented, we have assumed that no contract of continuing employment exists, and the conclusion reached in this opinion should not be construed to extend beyond this situation. If there is a contract for postjudgment employment, it is clear that the attorney has a duty under DR 7-101(A)(2) to honor it. Further, in view of the fact that it is the attorney's responsibility to establish the terms of the contract of employment, if it is ambiguous as to postjudgment services to the extent that it can be reasonably interpreted as requiring continuing representation, such a construction should be applied in o rder to safeguard the interests of the client. This is consistent with the thrust of Canon2 and its emphasis on the duty of the lawyer to see that counsel is made available.
Nothing in this opinion shall be construed as saying that the lawyer shall not, as part of his attorney/client relationship, see to the accomplishment of routine steps provided for in the judgment to be carried out immediately thereafter, such as the preparation of deeds, transfer of automobile title certificates and proof of, or beneficiary changes on, insurance policies.
With regard to the second inquiry, although the attorney may rightly conclude that he has no continuing responsibility to his client, he cannot assume that the attorney/client relationship between the other party and his lawyer was dissolved upon entry of the judgment. In a matter involving postjudgment activity this Committee in its Opinion 65-3 stated that "counsel for the plaintiff should not directly communicate with the defendant unless and until he has obtained consent from the attorney who represented the defendant in the litigation." Opinion 76-21 also supports this conclusion.
Ethics notwithstanding, professional courtesy would dictate that the other attorney be contacted and given an opportunity to respond on behalf of his client. Only upon a finding that the attorney no longer represents the other party can that party be contacted directly.