May a lawyer holding funds for a client tell the client's creditors he holds the funds so they can garnish them?

Plain-English summary

A member held funds belonging to a client residing in California and had knowledge of claims by certain attorneys for services against those funds; he did not state the nature of the claims or how they arose. He was in doubt whether he should forward the funds to his client without giving those attorneys an opportunity to garnish him, or whether he might interplead the parties.

The committee quoted the Canons: Canon 6, on the obligation to represent the client with undivided fidelity and not divulge his secrets or confidences; Canon 11, that money coming into the lawyer's possession for the client should be reported and accounted for promptly; and Canon 37, the duty to preserve the client's confidences. It cited ABA Opinion 163, which held it improper for an attorney to advise any of his client's creditors that he has made a collection and will hold the money so the creditor may attach it; that case involved a personal injury lawyer advising the client's doctor and hospital that the case had settled and that he held and would hold the funds so they could attach if the client refused to pay. Quoting Drinker, the committee stated that the lawyer's duty is to his client and he may not give away the client's rights or property, nor, in courtesy to a forwarding lawyer, advise him of the location of the client's property so he may collect his fee; a lawyer is not obliged to protect another lawyer's claim to a fee where a case is referred or superseded.

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 6, 11, and 37 of the Canons of Professional Ethics; the duty of confidentiality and the safekeeping of client property are now addressed by Rules 4-1.6 and 4-1.15 of the Rules Regulating The Florida Bar (Model Rules 1.6 and 1.15). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer let the client's creditors know he was holding the funds so they could garnish?

A: No. The committee concluded that advising the client's creditors that the lawyer holds funds due the client so the creditor may proceed against them is improper.

Q: Did the duty change because other lawyers claimed fees against the funds?

A: No. Quoting Drinker, the committee stated the lawyer's duty runs to his client; he may not give away the client's property, and he is not obliged to protect another lawyer's claim to a fee out of those funds.

Background and rules framework

The opinion applied former Canons 6, 11, and 37 of the Canons of Professional Ethics. The duty of confidentiality and the safekeeping of client property are now addressed by Rules 4-1.6 and 4-1.15 of the Rules Regulating The Florida Bar (Model Rules 1.6 and 1.15). The committee relied on ABA Opinion 163 and on Drinker's treatment of the lawyer's obligation not to give away the client's rights or property.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; see current Rule 4-1.6]
• Canon 11 [Canons of Professional Ethics; see current Rule 4-1.15]
• Canon 37 [Canons of Professional Ethics; see current Rule 4-1.6]

Other opinions cited:

• ABA Opinion 163

Other authorities:

• Drinker, Legal Ethics, pp. 196-198

See also

• FL Bar Ethics Op. 68-37: Retaining Lien on Trust Funds; Forwarding Attorney
• FL Bar Ethics Op. 65-10: Asserting a Retaining or Attorney's Lien
• FL Bar Ethics Op. 62-71: Exercising an Attorney's Retaining Lien

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-60-34/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-60-34-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 60-34
March 28, 1961
Advisory ethics opinions are not binding.
It is improper for an attorney to advise his client's creditors that he holds funds due to the client so that such creditor may proceed against them. It is the lawyer's duty to represent his client with undivided fidelity and to preserve his confidences.
Canons: 6, 11, 37
Opinion: ABA 163
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar submits the following inquiry:
He states that he has funds in his possession belonging to a client who resides in California, and that he has knowledge of the claims of certain attorneys for services against these funds. He does not state the nature of these claims nor how they arose. He is in doubt as to his duty to forward these funds to his client without giving these attorneys an opportunity to garnish him or that he might interplead the parties.
The Canons of Professional Ethics read in part:
Canon 6: "The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences. . . ."
Canon 11: "Money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly. . . ."
Canon 37: "It is the duty of a lawyer to preserve his client's confidences."
ABA Opinion 163 holds: It is improper for an attorney to advise any of his client's creditors that he has made a collection and that he will hold the money in order that the creditor may attach it.
This was a personal injury case where the lawyer advised his client's doctor and the hospital that the case had been settled and that he held the collection and would continue to do so for a short time so that the doctor and the hospital could attach it if the client refused to pay their reasonable charges.
Drinker, Legal Ethics, on "The Lawyer's Obligation to Other Lawyers," at pages 196-198, says: "His duty is to his client, and he may not give away the client's rights or property. Nor may a lawyer, in courtesy to one to whom he has forwarded a claim, advise him of the location of the client's property in order that his correspondent may collect his fee. . . . A lawyer is not obliged to protect the claim of another lawyer to a fee, where he refers a case to the other, or even where he supersedes him."