FLORIDA BAR ETHICS OPINION
April 7, 1961
Advisory ethics opinions are not binding.
The question whether a lawyer on yearly retainer is ethically entitled to collect and pay over to
the client the attorney’s fees allowed in eminent domain proceedings depends for its answer on
several factors, including whether the condemnation proceeding was contemplated by the parties
in setting the retainer and whether full disclosure of the lawyer-client fee arrangement has been
made to the court.
34, 35, 38
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar has submitted to the Committee the question of
whether a lawyer on a yearly retainer is ethically entitled to collect and pay over
to the client attorney’s fees allowed in eminent domain proceedings which are
required to be paid by the condemnor to the attorneys representing the
Mr. Drinker, in his work on Legal Ethics at page 97, under the chapter on “The Lawyer’s
Obligations to His Client,” says:
Also, whatever he receives from others in the service of his client properly
belongs to the client, to be payable to the client or credited against the lawyer’s
retainer or fee, whether he is employed only for the particular service, on an
annual retainer, or on a full-time salary.
And again on page 182, Mr. Drinker has the following comment:
The only situations in which a lawyer may properly permit a client to receive
and retain fees paid by others on account of his legal services are when such
payments are to reimburse the client in whole or in part for the client’s legal
expenses actually incurred in the specific matter for which they are paid.
In addition, there is a rather extensive analysis of the entire question of splitting fees with clients
on pages 181 through 186.
The comments from the various members of the Committee on this proposition are as
The attorneys’ fees provided for by Section 73.11, Florida Statutes, are for
the benefit of the client and not the attorney. If the attorney has obligated himself
to perform all legal services required by his client it is his duty to perform those
services for the agreed compensation. The client should not be permitted to make
a profit out of the condemnation proceeding, nor is the attorney entitled to
additional fees if the services performed in the condemnation proceedings were in
contemplation of the parties when the retainer contract was made. It is suggested
that the facts should be disclosed to the Court and the attorneys’ fees awarded in
the light thereof. If the retainer contract was made without contemplation of
eminent domain proceedings, it would be entirely proper for the attorney and
client to negotiate a new contract embracing that phase of the attorney’s services
and the attorney should then be compensated accordingly.
It is suggested that the attorney receive and credit the fees on the yearly retainer fee. If
the retainer has been paid in advance, then it would be proper for the attorney to give credit and
refund to the extent of the fees awarded in the condemnation action. A retainer as such is only to
insure the continued representation by the attorney of the client and services are credited against
the retainer. It should not be used as a fixed fee basis, since the amount of work done each year
would vary and the total fees paid each year should vary. It would be unethical for the attorneys
to perform the services for nothing and then turn the fees over to the land owner.
It would be unethical for the attorney to testify as to his legal services and prove the
reasonable value of such services if he is to pay over to his client other than the amount
necessary to reimburse the client for the client’s legal expenses actually incurred. If the entire
amount is to be paid to the client, it is the attorney’s duty to divulge the same in the
condemnation proceedings and prove and claim only so much of his retainer and the expenses
actually attributable to the condemnation proceedings.
Another opinion is that it would not be unethical for the attorney to collect and pay over
to his client the attorney’s fees paid by the condemnor, provided the end result as between the
attorney and client is that the attorney has been reasonably compensated for services performed,
including the services in the condemnation action, and the collection of attorney’s fees by the
client does not leave him with having received the benefit of a substantial amount of legal
services for which he is not compensating the attorney. No question of ethics could be raised if
the Court and jury are advised of the nature of the retainer agreement and the agreement between
the attorney and client that the entire attorney’s fees should be paid over to the client.