FLORIDA BAR ETHICS OPINION
November 17, 1977
Advisory ethics opinions are not binding.
A lawyer who represented a client in a dissolution of marriage case is not obligated to further
represent the client in enforcing the judgment entered in the dissolution proceeding if there was
no prior agreement between attorney and client to pursue post-judgment remedies. A lawyer
representing a client in post-judgment matters should not communicate directly with the
opposing party unless he has ascertained for a fact that the party is no longer represented by
Canon 2; DR 2-110; Canon 7; DR 7-101(A)(2)
Mr. Mead stated the opinion of the committee:
This opinion addresses the following inquiries:
1. After representing a client in a dissolution of marriage case, does an
attorney have a continuing obligation to represent that party in enforcing the
judgment entered in the dissolution proceeding?
2. Once a final judgment of dissolution of marriage has been entered, does
the attorney for one party who is seeking further assistance for his client have an
obligation to contact the opposing party through his or her counsel of record, or
may he contact the opposing party directly?
Inquiry #1 appears to be one of first impression, and the Committee is not unanimous in
its response. For purposes of answering this question, we have assumed that no petition for
rehearing was filed and that the appeal period has expired. Although this does not automatically
terminate the attorney/client relationship between the party and his lawyer if there is some prior
agreement on the part of the attorney to pursue postjudgment remedies, we feel that otherwise he
has no obligation to do so. There is no Ethical Consideration or Disciplinary Rule on point; since
we believe that under normal circumstances the attorney/client relationship no longer exists,
DR 2-110 (Withdrawal from Employment) does not apply. Canon 7, which requires the zealous
representation of a client, also presumes the existence of such a relationship. While we recognize
that the attorney’s familiarity with the file may cause the client some inconvenience if the lawyer
declines to undertake representation for postjudgment relief, in view of the extensive
enforcement proceedings which are quite common in dissolution cases and which often drag on
for years, the attorney should not be put in a position of being perpetual counsel when he does
not choose to do so. No one would contest the fact that the client is free to select another lawyer
to enforce the judgment and, absent a contract of continuing employment, it would seem that this
freedom of choice should be mutual.
A minority of the Committee is of the opinion that a lawyer does have a continuing duty
to assist his client in enforcing a judgment obtained in a dissolution of marriage case. Under this
view, at the very least the attorney has an obligation to represent the client in the matter for a
reasonable time after the entry of a final judgment. This minority feels that the refusal of the
lawyer to handle a postjudgment action arising within such reasonable time would constitute
abandonment of his client.
The importance of the contractual relationship between the attorney and client deserves
special consideration here. DR 7-101(A)(2) states that a lawyer shall not intentionally fail to
carry out a “contract of employment” and, although interpretation of the law is not the province
of this Committee, the existence of such a contract is fundamental to the inquiry at hand. Based
on the facts presented, we have assumed that no contract of continuing employment exists, and
the conclusion reached in this opinion should not be construed to extend beyond this situation. If
there is a contract for postjudgment employment, it is clear that the attorney has a duty under DR
7-101(A)(2) to honor it. Further, in view of the fact that it is the attorney’s responsibility to
establish the terms of the contract of employment, if it is ambiguous as to postjudgment services
to the extent that it can be reasonably interpreted as requiring continuing representation, such a
construction should be applied in order to safeguard the interests of the client. This is consistent
with the thrust of Canon 2 and its emphasis on the duty of the lawyer to see that counsel is made
Nothing in this opinion shall be construed as saying that the lawyer shall not, as part of
his attorney/client relationship, see to the accomplishment of routine steps provided for in the
judgment to be carried out immediately thereafter, such as the preparation of deeds, transfer of
automobile title certificates and proof of, or beneficiary changes on, insurance policies.
With regard to the second inquiry, although the attorney may rightly conclude that he has
no continuing responsibility to his client, he cannot assume that the attorney/client relationship
between the other party and his lawyer was dissolved upon entry of the judgment. In a matter
involving postjudgment activity this Committee in its Opinion 65-3 stated that “counsel for the
plaintiff should not directly communicate with the defendant unless and until he has obtained
consent from the attorney who represented the defendant in the litigation.” Opinion 76-21 also
supports this conclusion.
Ethics notwithstanding, professional courtesy would dictate that the other attorney be
contacted and given an opportunity to respond on behalf of his client. Only upon a finding that
the attorney no longer represents the other party can that party be contacted directly.