The Florida Bar
An attorney whose reasonable efforts to collect a delinquent fee from a client are unsuccessful may use a reputable collection agency to collect the fee. The attorney must be careful not to divulge any details to the collection agency regarding the representation of the client that are not relevant to the debt owed. Also, the employing lawyer has a continuing duty to assure that the collection efforts delegated to the agency are not conducted in a manner contrary to the Florida Code of Professional Responsibility.
CPR: EC 2-23, DR 3-104, DR 4-101(C)(3)
Opinions: 74-9 (overruled), Colorado Bar Association Opinion No. 20 (1961), Oregon State Bar Opinion No. 225 (1972)
Vice Chairman Mead stated the opinion of the committee:
This inquiry involves the ethical propriety of utilizing a collection agency to collect a delinquent legal fee from a client.
This Committee's position was set forth in Opinion 74-9 when it held that the lawyer-client relationship is "too confidential and personal to permit fee collection problems to be handled by a collection agency." The present Committee acknowledges the fact that the practice of law is primarily a profession and that the business aspects must assume a secondary perspective. Further, we are mindful of EC 2-23, which states that lawyers should attempt to resolve fee differences with clients on an amicable basis if possible. However, we are also aware of the fact that in today's commercial world lawyers will have their share of bad debts, and there are those clients who will simply refuse to pay a legal fee no matter how reasonable the fee may be. In these instances, under 74-9 the only alternative available to the attorney is to file suit and thus add to the already heavy burden on our court system. We see no justification for proscribing a method of collecting delinquent fees that has been accepted in other professions, and we do not find the use of a collection agency to be necessarily inconsistent with the confidentiality that must exist between a lawyer and his client. This conclusion was reached by the Colorado Bar Association in its Opinion No. 20 (1961) and by the Oregon State Bar in its Opinion No. 225 (1972).
It is the Committee's view that as long as the attorney makes a reasonable attempt to collect the fee through his or her own efforts and, failing this, is careful to divulge to the collection agency no details regarding the representation of the client that are not relevant to the debt owed, the use of a reputable agency to collect a fee would not be unethical. We find support for this position in DR 4-101(C)(3), which permits a lawyer to reveal confidences or secrets of a client to the extent "necessary to establish or collect his fee." Accordingly, Opinion 74-9 is hereby overruled.
It is, however, the additional opinion of the Committee that any collection agency so employed by the attorney should be viewed as "nonlawyer personnel" within the purview of DR 3-104. The employing lawyer therefore has a continuing duty of exercising a high standard of care to assure that the delegated collection efforts of the agency are not conducted in a manner contrary to the Florida Code of Professional Responsibility.
A substantial minority of the Committee is of the view that such a collection agency should not be viewed as "nonlawyer personnel" respecting which DR 3-104 is applicable. Two members of the Committee are of the opinion that the use of a collection agency is contrary to the attorney-client relationship and should continue to be disapproved.