FLORIDA BAR ETHICS OPINION
February 15, 1982
Advisory ethics opinions are not binding.
Funds received and held in trust by an attorney for some different purpose may not, over the
client’s or former client’s objections, ethically be applied to the satisfaction of an attorney’s
claim, or claimed lien, for costs and fees without prior approval of the application by a court of
competent jurisdiction. Further, if the property held in trust is money or other readily divisible
property, the retention under claim of lien of an amount or portion in excess of that necessary to
satisfy the obligation to the attorney is improper.
Chairman Ervin stated the opinion of the committee:
A Florida attorney holds in his trust account funds he had received from administration of
an estate, which funds were owed by the estate to the attorney’s former client. Upon receipt of
the funds, the attorney requested authorization from his former client to apply a portion of said
funds to unpaid attorney’s fees and costs from the attorney’s earlier, unrelated representation and
advised the former client of his intent to place a “retaining lien” against the funds.
The former client refused authorization to so apply the funds and the attorney thereafter
(apparently without reference to or assertion of a lien of any sort) sought and secured a default
money judgment in small claims court against the former client for a specified amount of costs
and attorney’s fees.
The attorney inquires whether he may now ethically apply a portion of the sum he holds
in trust to satisfaction of his judgment against his former client and remit the balance or,
alternatively, whether he may direct the sheriff to levy on the funds he holds in his trust account.
Section 11.02(4) of the Integration Rule provides as follows, in pertinent part:
(4) Trust funds and fees. Money or other property entrusted to an attorney for
a specific purpose, including advances for costs and expenses, is held in trust and
must be applied only to that purpose. Money and other property of clients coming
into the hands of an attorney are not subject to counterclaim or setoff for attorney
fees, and a refusal to account for and deliver over such property and money upon
demand shall be deemed a conversion. This is not to preclude the retention of
money or other property upon which the lawyer has a valid lien for his services or
to preclude the payment of agreed fees from the proceeds of transactions or
collections. (Emphasis supplied.)
It is noted that the above-quoted section treats separately the instances where “retention”
and “payment” are authorized, and uses the more restrictive term “retention” with reference to a
In addition, DR 9-102(B) of the Florida Code of Professional Responsibility provides as
follows, in pertinent part:
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other
(4) Promptly pay or deliver to the client as requested by a client the funds,
securities, or other properties in the possession of the lawyer which the client is
entitled to receive.
In prior Advisory Opinions 68-21 and 71-67 this Committee expressed its opinion that
the question of whether the attorney had a valid lien against a client’s property coming into the
attorney’s hands was a question of law for the courts, not one of ethics subject to opinion by this
Committee, which question is not fully resolved by the securing of an earlier money judgment
against the client.
The Committee adheres to its prior opinions and the view stated therein. The proper
procedure would be for the attorney to promptly file an action seeking establishment of a
retaining lien or other entitlement as to the funds, or a portion thereof, or otherwise pay the sums
to the former client as demanded. The Committee is of the opinion that funds received and held
in trust by an attorney for some different purpose may not, over the client’s or former client’s
objections, ethically be applied to satisfaction of an attorney’s claim, or claimed lien, for costs
and fees without prior approval of the application by a court of competent jurisdiction.
The Committee is of the further opinion that where the property held in trust is money or
other readily divisible property, the retention under claim of lien of an amount or portion in
excess of that necessary to satisfy the obligations to the attorney is not ethically proper.