Can a lawyer use a collection agency to collect an unpaid legal fee from a client?

Plain-English summary

The committee considered whether a lawyer could use a collection agency to collect a delinquent legal fee from a client. Its earlier Opinion 74-9 had held the lawyer-client relationship too confidential and personal to allow fee-collection problems to be handled by a collection agency. The committee acknowledged that the practice of law is primarily a profession and that EC 2-23 encourages resolving fee differences with clients amicably, but recognized that lawyers will have bad debts and some clients simply refuse to pay a reasonable fee, leaving suit as the only alternative under the older opinion.

The committee saw no justification for forbidding a collection method accepted in other professions and concluded that using a collection agency is not necessarily inconsistent with lawyer-client confidentiality, citing supporting opinions from Colorado and Oregon. It held that, so long as the lawyer first makes a reasonable attempt to collect the fee himself and then is careful to divulge to the agency no details about the representation that are not relevant to the debt, using a reputable agency is not unethical. It found support in DR 4-101(C)(3), which permits revealing client confidences to the extent necessary to establish or collect a fee, and expressly overruled Opinion 74-9.

The committee added that any collection agency so employed should be treated as "nonlawyer personnel" under DR 3-104, so the lawyer has a continuing duty to exercise a high standard of care to assure the agency's delegated efforts are not conducted contrary to the Code. The opinion notes that a substantial minority disagreed that DR 3-104 applied, and that two members would have continued to disapprove using a collection agency at all.

Currency note

This opinion was issued in the early 1980s, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

The official PDF of this opinion does not carry a printed issuance date; the opinion number places it in the early 1980s.

Common questions

Q: Can a lawyer send an unpaid fee to a collection agency?

A: The opinion concluded a lawyer may use a reputable collection agency after his own reasonable collection efforts fail, overruling the earlier Opinion 74-9 to the contrary.

Q: What can the lawyer tell the collection agency?

A: The opinion concluded the lawyer must divulge no details about the representation that are not relevant to the debt owed.

Q: Does the lawyer remain responsible for the agency's conduct?

A: The opinion concluded the agency should be treated as nonlawyer personnel under DR 3-104, leaving the lawyer a continuing duty to ensure its efforts comply with the Code.

Background and rules framework

The opinion interprets the duty of confidentiality and its exception for fee collection (CPR DR 4-101(C)(3); EC 2-23), corresponding to Model Rule 1.6, and the duty to supervise nonlawyer personnel under DR 3-104, corresponding to Model Rule 5.3.

Citations and references

Rules of Professional Conduct:

• CPR EC 2-23; DR 3-104; DR 4-101(C)(3) (Model Rule 1.6, confidentiality; Model Rule 5.3, nonlawyer assistants)

Other opinions cited:

• Fla. Ethics Opinion 74-9 (overruled)
• Colorado Bar Association Opinion No. 20 (1961); Oregon State Bar Opinion No. 225 (1972)

See also

• FL Bar Ethics Op. 90-2: Reporting a Delinquent Former Client to a Credit Service
• FL Bar Ethics Op. 88-1: Action Against a Client for Unpaid Fees

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-81-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-81-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 81-3
Advisory ethics opinions are not binding.

An attorney whose reasonable efforts to collect a delinquent fee from a client are unsuccessful may use a reputable collection agency to collect the fee. The attorney must be careful not to divulge any details to the collection agency regarding the representation of the client that are not relevant to the debt owed. Also, the employing lawyer has a continuing duty to assure that the collection efforts delegated to the agency are not conducted in a manner contrary to the Florida Code of Professional Responsibility.

CPR: EC 2-23, DR 3-104, DR 4-101(C)(3)
Opinions: 74-9 (overruled), Colorado Bar Association Opinion No. 20 (1961), Oregon State Bar Opinion No. 225 (1972)

Vice Chairman Mead stated the opinion of the committee:

This inquiry involves the ethical propriety of utilizing a collection agency to collect a delinquent legal fee from a client.

This Committee's position was set forth in Opinion 74-9 when it held that the lawyer-client relationship is "too confidential and personal to permit fee collection problems to be handled by a collection agency." The present Committee acknowledges the fact that the practice of law is primarily a profession and that the business aspects must assume a secondary perspective. Further, we are mindful of EC 2-23, which states that lawyers should attempt to resolve fee differences with clients on an amicable basis if possible. However, we are also aware of the fact that in today's commercial world lawyers will have their share of bad debts, and there are those clients who will simply refuse to pay a legal fee no matter how reasonable the fee may be. In these instances, under 74-9 the only alternative available to the attorney is to file suit and thus add to the already heavy burden on our court system. We see no justification for proscribing a method of collecting delinquent fees that has been accepted in other professions, and we do not find the use of a collection agency to be necessarily inconsistent with the confidentiality that must exist between a lawyer and his client. This conclusion was reached by the Colorado Bar Association in its Opinion No. 20 (1961) and by the Oregon State Bar in its Opinion No. 225 (1972).

It is the Committee's view that as long as the attorney makes a reasonable attempt to collect the fee through his or her own efforts and, failing this, is careful to divulge to the collection agency no details regarding the representation of the client that are not relevant to the debt owed, the use of a reputable agency to collect a fee would not be unethical. We find support for this position in DR 4-101(C)(3), which permits a lawyer to reveal confidences or secrets of a client to the extent "necessary to establish or collect his fee." Accordingly, Opinion 74-9 is hereby overruled.

It is, however, the additional opinion of the Committee that any collection agency so employed by the attorney should be viewed as "nonlawyer personnel" within the purview of DR 3-104. The employing lawyer therefore has a continuing duty of exercising a high standard of care to assure that the delegated collection efforts of the agency are not conducted in a manner contrary to the Florida Code of Professional Responsibility.

A substantial minority of the Committee is of the view that such a collection agency should not be viewed as "nonlawyer personnel" respecting which DR 3-104 is applicable. Two members of the Committee are of the opinion that the use of a collection agency is contrary to the attorney-client relationship and should continue to be disapproved.