Can a volunteer legal aid lawyer request a court-awarded fee that will be turned over to the legal aid program, and must the lawyer disclose the legal aid role?

Plain-English summary

A county bar association had established a legal aid program under which members represented persons on a voluntary basis in litigation. In some cases a statutory or common-law right existed to seek attorney's fees from the opposing party, and under the association's standing policy any fees awarded were turned over to the association. The inquiry asked whether the lawyers may request court-awarded fees and whether they must disclose to the court that they are serving under the legal aid program when they do.

A minority of the committee believed it was not proper for a lawyer to request a court-awarded fee in a legal aid case. A majority concluded that a fee may properly be requested, that the lawyer may agree with the association that any awarded fees be turned over to it, and that on requesting a fee the lawyer must disclose to the court that the matter is handled under the legal aid program. The committee added that whether the court should award a fee in a given case is a question of law for the court, not a legal-ethics question.

Currency note

This opinion was issued in 1973, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.5 and 4-6.1 before relying on any specific requirement mentioned here.

Common questions

Q: Could the legal aid volunteer ask the court for a fee even though it goes to the program?

A: Under this opinion, a majority said yes; the lawyer may agree that awarded fees be turned over to the legal aid association.

Q: Did the lawyer have to tell the court about the legal aid role?

A: Yes. The majority held that on requesting a fee the lawyer must disclose to the court that the matter is being handled under the legal aid program.

Q: Did the committee decide whether the fee should be granted?

A: No. It treated whether a court should award a fee as a question of law for the court, not a legal-ethics question.

Background and rules framework

The opinion applied the former Code of Professional Responsibility to fees in a volunteer legal aid program. In current Florida practice the subject corresponds to Rule 4-1.5 (fees and costs) and Rule 4-6.1 (pro bono public service); the Model Rule analogues are 1.5 and 6.1.

Citations and references

Rules of Professional Conduct:

• The opinion did not cite specific Code provisions.

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-6/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-6-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 73-6
August 16, 1973
Advisory ethics opinions are not binding.
A lawyer handling a legal aid case may be granted a court-awarded fee even though the lawyer intends to turn the fee over to the legal aid association. But upon requesting the fee, the lawyer must disclose that he is handling the case under the legal aid program. Whether the fee should be awarded is a question for the court to determine.
Vice Chairman Daniels stated the opinion of the committee:
A county bar association has established a legal aid program under which members of the association represent persons on a voluntary basis in litigation. In some cases, a common law statutory right exists to seek attorney's fees from the opposing party. Under the association's standing policy, any fees awarded are turned over to the association. Inquiry is made as to whether lawyers may request court-awarded fees and whether they should disclose to the courts the fact that they are serving under the legal aid program if such fees are requested. A minority of the Committee believes that it is not proper for a lawyer to request a court-awarded fee in cases handled under a legal aid program. However, a majority of the Committee believes that a fee may properly be requested under such circumstances and that:
1. A lawyer may agree with the association that any fees awarded be turned over to the association; and
2. Upon requesting a fee, the lawyer must disclose to the court that he is handling the matter under the legal aid program.
Whether the court should award a fee in a given case is a question of law for the court to determine rather than a legal ethics question.