Ethics Opinion

Opinion 88-1

FLORIDA BAR ETHICS OPINION
OPINION 88-1
July 15, 1988
Advisory ethics opinions are not binding.
An attorney whose client has reneged on a fee agreement should not take action adverse to the
client to enforce the agreement until the representation has been concluded, whether by
withdrawal or by conclusion of the client’s matter. If the client’s breach of the fee agreement has
made it impossible for the attorney to fulfill his obligation to place the client’s interests ahead of
his own, the attorney should seek to withdraw. An attorney should file suit against a client for
fees only as a last resort.
RPC:
Case:

4-1.7(b), 4-1.16(b)(4), 4-1.16(c), 4-1.16(d)
The Florida Bar v. Fields, 482 So.2d 1354 (Fla. 1986)

The inquiring attorney is currently representing a client against her former husband in a
matter concerning, among other things, a motion for continuing writ of garnishment. At the time
this representation was undertaken, an hourly fee was agreed upon. Client and attorney further
agreed that, as the payments were received pursuant to the writ of garnishment, one half of each
payment would go to the client and the other half would go to the attorney until his fees were
paid in full. Additionally, it was agreed that if the court awarded attorney’s fees to be paid by the
former husband, any such fees collected would be credited against the fees paid or owed by the
inquirer’s client. However, on the day of the final hearing regarding the motion for continuing
writ of garnishment, the client refused to sign an affidavit reflecting this agreement.
When the court granted the motion, the ex-husband’s employer was ordered to send the
garnishment checks to the attorney’s trust account. The employer is instead sending the checks
directly to the attorney’s client. Further, the client is not complying with the agreement to pay the
attorney one-half of each payment until the attorney’s fees owed are fully paid. The hearing on
the inquiring attorney’s motion for attorney’s fees and costs is set for September.
The inquiring attorney requests an opinion as to the ethically proper course of conduct to
follow in light of the above facts. Specifically, he asks whether he should file a motion for
contempt against the ex-husband’s employer for sending the payments directly to the attorney’s
client rather than to his trust account as required by the court’s order. He also asks whether he
should withdraw from the representation and sue the client for the unpaid fees, or whether he
should delay action of this type until after the September hearing on attorney’s fees.
The attorney may not allow his personal interests to interfere with his ability to
adequately represent his client. Furthermore, he may not take any action that might be contrary
to his client’s interests without her consent. Rule 4-1.7(b), Rules Regulating The Florida Bar.
Accordingly, it would appear that the attorney should not file a motion to hold the employer in
contempt. The client apparently is receiving the payments, so filing the motion would not
advance the client’s interests; in fact, it might be contrary to the client’s interests if the attorney
billed her for filing the motion. Of course, the motion could properly be filed with the client’s
consent.

Similarly, the attorney should not sue the client for fees while he is representing her.
The client’s failure to fulfill her financial obligations to the attorney can furnish grounds
for the attorney to withdraw from the representation after notifying his client of his intent to do
so if the client fails to satisfy her obligations:
Except as stated in paragraph (c), a lawyer may withdraw from representing a
client if withdrawal can be accomplished without material adverse effect on the
interests of the client, or if:
(4) The client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer’s services and has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled[.]
Rule 4-1.16(b)(4). In the situation presented, the inquiring attorney may remain as
counsel for his client until after the attorney’s fees hearing if his personal interests will not
adversely affect the representation. He could withdraw following the hearing if the client’s
financial obligations had not been satisfied.
However, if the client’s failure to comply with the fee agreement has adversely affected
the attorney’s ability to zealously represent the client, then this conflict of interests requires that
the attorney promptly attempt to withdraw. Of course, if a motion to withdraw is denied, the
attorney is ethically obligated to “continue representation notwithstanding good cause for
terminating the representation.” Rule 4-1.16(c). Furthermore, upon withdrawal an attorney must
take steps to avoid foreseeable prejudice to the client as required by Rule 4-1.16(d).
There are situations in which suing a former client for unpaid fees may be necessary as a
“last resort.” Before instituting suit, the attorney should attempt to resolve the matter amicably.
See The Florida Bar v. Fields, 482 So.2d 1354 (Fla. 1986). But if the inquiring attorney is put in
such a situation, he is not ethically precluded from suing the client for the unpaid fee.