The Florida Bar

September 21, 1961

The fact that a client, whom he is unable to locate, states in a Christmas card to him that the lawyer “is welcome to” funds he holds for her, is not sufficient justification for accepting same. The lawyer should determine a reasonable fee for services rendered, add any costs advanced, and subtract the same from amounts received.

Caveat: See Rule 11.02(4), Integration Rule of The Florida Bar.

Canon: 12

Chairman Holcomb stated the opinion of the committee:

As we understand the facts, a member of The Florida Bar represented the wife in a divorce suit, and prior to the final hearing the husband-defendant died. At the time of his death there were two life insurance policies with benefits available to his client amounting to some $1,200. He later received payment of the insurance amounts by mail but was then unable to locate his client and found that she had sold her home, taken her children out of school, remarried, and that the children had married. His attempts to locate his client were unsuccessful. The following December he received a Christmas card in which she stated that he was welcome to the insurance collections. The postmark on the card showed it was mailed in his city but it had no return address. He is holding the funds in his trust account. He has not received any fees from his client for the divorce matter nor for handling the settlement of the husband's estate. He also handled other legal matters for his client. He has advanced various sums as costs, and now desires to know whether he is entitled to withdraw the funds in accordance with the instructions contained in the Christmas card and how he should handle the matter.

We do not believe this is strictly an ethical matter but more of a legal matter. Lawyers have liens on funds coming into their hands for payment of their fees, and where a fee has been determined it may be properly deducted from money in the hands of an attorney belonging to the client. See 3 Fla. Jur., Attorneys, Sec. 63, page 398. The fee, of course, has to be earned and be due and the client informed of the amount.

We suggest that the member determine what is a reasonable fee for the services rendered and add the costs thereto and subtract the same from the amounts received. We do not consider that the statement made by the client in her Christmas card that he is welcome to the funds would be sufficient justification for accepting the same.

[Revised: 08-24-2011]