May a lawyer on a yearly retainer collect the statutory attorney's fees awarded in an eminent domain case and pay them over to the client?

Plain-English summary

A member asked whether a lawyer on a yearly retainer is ethically entitled to collect, and pay over to the client, the attorney's fees allowed in eminent domain proceedings, which the condemnor is required to pay to the attorneys representing the condemnee. The committee drew on Drinker's Legal Ethics, which says that whatever a lawyer receives from others in the service of his client properly belongs to the client, to be paid over or credited against the retainer or fee, and that a client may properly receive and retain fees paid by others on account of legal services only to reimburse the client for legal expenses actually incurred in that matter.

The committee then set out the comments of its members. The Section 73.11 attorney's fees are for the benefit of the client, not the attorney. If the lawyer has obligated himself to perform all legal services for the agreed compensation, he must perform them for that compensation; the client should not profit from the condemnation, and the lawyer is not entitled to additional fees if the condemnation services were in contemplation of the parties when the retainer was made. The facts should be disclosed to the court and the fees awarded accordingly. If the retainer was made without contemplation of eminent domain proceedings, the lawyer and client may negotiate a new contract for that work. Members suggested crediting the fees against the yearly retainer (refunding to the extent of the award if the retainer was prepaid), and noted that a retainer only assures continued representation and should not be treated as a fixed fee. It would be unethical to perform the services for nothing and turn the fees over to the landowner, or to prove the reasonable value of services while paying the client more than reimbursement for expenses actually incurred. Another member's view was that collecting and paying the fees to the client would not be unethical, provided the lawyer ends up reasonably compensated for all services, including the condemnation work, and the client is not left with the benefit of substantial uncompensated legal services; no ethics question arises if the court and jury are advised of the retainer arrangement and the agreement to pay the fees to the client.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 34, 35, and 38 of the Canons of Professional Ethics and Section 73.11, Florida Statutes; fee arrangements and the division of fees are now addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5). The eminent domain fee statute has since been renumbered and amended. Treat this page as historical context, not current guidance. Verify against the current rules and statute before relying on any specific requirement mentioned here.

Common questions

Q: Who do the statutory condemnation attorney's fees belong to?

A: The committee stated that the attorney's fees provided by Section 73.11 are for the benefit of the client, not the attorney.

Q: When could the lawyer charge an additional fee for the condemnation work?

A: If the retainer contract was made without contemplation of eminent domain proceedings, the committee said it would be proper for the lawyer and client to negotiate a new contract covering that work and to compensate the lawyer accordingly.

Q: What role does disclosure to the court play?

A: Members agreed the facts of the retainer and fee arrangement should be disclosed to the court so the fees can be awarded in light of them; one view found no ethics question if the court and jury are advised of the arrangement.

Background and rules framework

The opinion applied former Canons 34, 35, and 38 of the Canons of Professional Ethics and Section 73.11, Florida Statutes. Fee arrangements and the division of fees are now addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5). The committee's analysis turned on whether the condemnation work was contemplated by the retainer and on disclosure of the fee arrangement to the court.

Citations and references

Rules of Professional Conduct:

• Canon 34 [Canons of Professional Ethics; see current Rule 4-1.5]
• Canon 35 [Canons of Professional Ethics]
• Canon 38 [Canons of Professional Ethics]

Statutes:

• Section 73.11, Florida Statutes (eminent domain attorney's fees)

Other authorities:

• Drinker, Legal Ethics, pp. 97, 181-186

See also

• FL Bar Ethics Op. 62-15: Charging Fees From One Case Against Another's Proceeds
• FL Bar Ethics Op. 61-33: Tendering a Fee Dispute With a Subrogated Insurer to Court
• FL Bar Ethics Op. 64-15: Pre-Set Estate Fee in a Will or Agreement

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-33-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 60-33
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.
Canons: 34, 35, 38
Statutes: F.S. 73.11
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 condemnee.
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 follows:
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.