The Florida Bar

Ethics Opinion

Opinion 65-8

February 19, 1965
Advisory ethics opinions are not binding.
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.

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.