The Florida Bar

February 19, 1965

When a defendant husband ordered to pay support money for the wife and children and to pay the fee of the wife's attorney is making the required periodic payments for support money but not for the attorney's fee, the attorney may move for a rule to show cause. However, if the defendant husband is unable to pay both support and the attorney's fee, and if the support payments are essential to the livelihood of the wife and children, the attorney should subordinate the enforcement of his rights to the needs of his innocent client.

Canon: 6
Opinion: ABA 132

Chairman Smith stated the opinion of the committee:

The inquiry of a member of The Florida Bar is based upon the following factual situation.

An attorney represented the plaintiff wife in a divorce proceeding. He obtained for her a divorce decree by which the former husband was ordered to pay both alimony and support money for the wife and children and the fee of the wife's attorney, which fee was to be paid in monthly installments. The defendant ex-husband honored the obligation for alimony and support but has not made the installment payments of the attorney's fee. The attorney may move the court to require the defendant to pay the attorney's fee but, in so doing, he may possibly interfere with the alimony and support payments to the wife and children. The attorney is concerned whether a conflict of interest exists and whether he may ethically proceed against the ex-husband under the circumstances.

Canon 6 of the Canons of Professional Ethics is involved. By virtue of that provision, an attorney must place the interest of his client above his own interest. It is not clear from the factual situation presented, however, that there is a real conflict of interest. It is presumed that the court fixed the alimony and support payments, and the attorney's fee, within the ability of the defendant husband to pay. It must also be presumed that no punishment by imprisonment will be imposed except for willful disobedience of the order of the court. This necessarily implies ability on the part of defendant husband to pay.

Under these circumstances, the Committee does not consider it unethical per se for the attorney to proceed in his own interest. However, if the defendant husband is in fact unable to pay both the alimony and support payments and the attorney's fee, and if the support payments are essential to the livelihood of the dependents, then the attorney should take no action which would interfere with the support of his client or the children until such time as the former husband is able to make all payments.

Of some interest is the analogous situation presented in Opinion 132 of the Professional Ethics Committee of the American Bar Association. There it was held that a lawyer should withdraw from representation of a client if he plans to bring suit on behalf of the client against a defendant and to bring a second suit on his own behalf against the same defendant when it is doubtful if the defendant is financially able to satisfy both judgments if obtained.

[Revised: 08-24-2011]