Can a wife's divorce attorney enforce a court-ordered fee against the husband when doing so might interfere with the support payments the wife and children depend on?

Plain-English summary

An attorney represented the plaintiff wife in a divorce and obtained a decree ordering the former husband to pay alimony, support for the wife and children, and the wife's attorney's fee in monthly installments. The husband paid the alimony and support but not the installments of the attorney's fee. The attorney could move the court to require payment of his fee, but doing so might interfere with the alimony and support payments. He asked whether a conflict of interest existed and whether he could ethically proceed against the ex-husband.

The committee said Canon 6 was involved, because an attorney must place his client's interest above his own. It was not clear there was a real conflict: it presumed the court fixed the payments within the husband's ability to pay, and that no imprisonment would be imposed except for willful disobedience, which implies ability to pay. On those facts, the committee did not consider it unethical per se for the attorney to proceed in his own interest. However, if the husband was in fact unable to pay both support and the fee, and the support payments were essential to the dependents' livelihood, the attorney should take no action interfering with the support of his client or the children until the husband could make all payments. The committee noted the analogous ABA Opinion 132, which held that a lawyer should withdraw if he plans to sue a defendant both for a client and on his own behalf where it is doubtful the defendant can satisfy both judgments.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 6 of the Canons of Professional Ethics; conflicts between a lawyer's own interests and a client's are now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a wife's divorce lawyer enforce a court-ordered fee against the husband?

A: The committee said it is not unethical per se for the attorney to proceed in his own interest, presuming the court fixed the payments within the husband's ability to pay.

Q: When should the lawyer hold off?

A: If the husband cannot in fact pay both the fee and the support, and the support is essential to the dependents' livelihood, the committee said the attorney should take no action interfering with support until the husband can make all payments.

Q: What did the committee say about the conflict question?

A: It said Canon 6 requires the attorney to place his client's interest above his own, but found no clear conflict on the presumed facts; the analogous ABA Opinion 132 counsels withdrawal where a lawyer's own claim and a client's claim against the same defendant cannot both be satisfied.

Background and rules framework

The opinion applied former Canon 6 of the Canons of Professional Ethics, under which an attorney must place his client's interest above his own. Conflicts between a lawyer's personal interest and the client's are now governed by Rule 4-1.7 of the Rules Regulating The Florida Bar (Model Rule 1.7). The committee drew on the analogous ABA Opinion 132.

Citations and references

Rules of Professional Conduct:

• Canon 6 [Canons of Professional Ethics; placing the client's interest above the lawyer's; see current Rule 4-1.7]

Other opinions cited:

• ABA Op. 132: a lawyer should withdraw where his own suit and a client's suit against the same defendant cannot both be satisfied

See also

• FL Bar Ethics Op. 65-13: Opposing a Current Client in Another Case
• FL Bar Ethics Op. 65-39: Advancing Living Expenses to a Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-8.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-8
February 19, 1965
Advisory ethics opinions are not binding.
When a defendant husband ordered to pay support money for the wife and children and to pay the fee of the wife's attorney is making the required periodic payments for support money but not for the attorney's fee, the attorney may move for a rule to show cause. However, if the defendant husband is unable to pay both support and the attorney's fee, and if the support payments are essential to the livelihood of the wife and children, the attorney should subordinate the enforcement of his rights to the needs of his innocent client.
Canon: 6
Opinion: ABA 132
Chairman Smith stated the opinion of the committee:
The inquiry of a member of The Florida Bar is based upon the following factual situation.
An attorney represented the plaintiff wife in a divorce proceeding. He obtained for her a divorce decree by which the former husband was ordered to pay both alimony and support money for the wife and children and the fee of the wife's attorney, which fee was to be paid in monthly installments. The defendant ex-husband honored the obligation for alimony and support but has not made the installment payments of the attorney's fee. The attorney may move the court to require the defendant to pay the attorney's fee but, in so doing, he may possibly interfere with the alimony and support payments to the wife and children. The attorney is concerned whether a conflict of interest exists and whether he may ethically proceed against the ex-husband under the circumstances.
Canon 6 of the Canons of Professional Ethics is involved. By virtue of that provision, an attorney must place the interest of his client above his own interest. It is not clear from the factual situation presented, however, that there is a real conflict of interest. It is presumed that the court fixed the alimony and support payments, and the attorney's fee, within the ability of the defendant husband to pay. It must also be presumed that no punishment by imprisonment will be imposed except for willful disobedience of the order of the court. This necessarily implies ability on the part of defendant husband to pay.
Under these circumstances, the Committee does not consider it unethical per se for the attorney to proceed in his own interest. However, if the defendant husband is in fact unable to pay both the alimony and support payments and the attorney's fee, and if the support payments are essential to the livelihood of the dependents, then the attorney should take no action which would interfere with the support of his client or the children until such time as the former husband is able to make all payments.
Of some interest is the analogous situation presented in Opinion 132 of the Professional Ethics Committee of the American Bar Association. There it was held that a lawyer should withdraw from representation of a client if he plans to bring suit on behalf of the client against a defendant and to bring a second suit on his own behalf against the same defendant when it is doubtful if the defendant is financially able to satisfy both judgments if obtained.