When a client stops paying, can the lawyer sue for fees or take other action against the client during the representation?

Plain-English summary

The inquiring attorney represented a client in a garnishment matter under an hourly fee, with an agreement that half of each garnishment payment would go to the lawyer until the fee was paid. The client refused to sign the affidavit reflecting that agreement, the garnishment checks were going directly to the client rather than the lawyer's trust account, and the client was not paying the lawyer's share. The lawyer asked whether he could move to hold the employer in contempt and whether he should withdraw and sue the client for the unpaid fees.

The committee concluded that the lawyer may not let his personal interests interfere with adequate representation and may not take action contrary to the client's interests without consent. Under Rule 4-1.7(b), filing a contempt motion against the employer would not advance the client (who was receiving the payments) and could even harm the client if she were billed for it, so it should not be filed absent the client's consent.

The committee also concluded that the lawyer should not sue the client for fees while still representing her. Under Rule 4-1.16(b)(4), the client's failure to meet her financial obligation can be grounds to withdraw after reasonable warning. If the fee dispute has impaired the lawyer's ability to represent the client zealously, the resulting conflict requires the lawyer to attempt to withdraw promptly; if a withdrawal motion is denied, Rule 4-1.16(c) obligates the lawyer to continue, and on withdrawal Rule 4-1.16(d) requires steps to avoid foreseeable prejudice to the client. Suing a former client for unpaid fees may be necessary as a last resort, but only after attempting to resolve the matter amicably.

Currency note

This opinion was issued in 1988, 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer sue a current client for unpaid fees?

A: The opinion concluded that a lawyer should not sue the client for fees while still representing her; suing a former client may be necessary only as a last resort, after attempting to resolve the matter amicably.

Q: Does nonpayment let the lawyer withdraw?

A: The opinion explained that under Rule 4-1.16(b)(4) a client's failure to meet a financial obligation can be grounds to withdraw after the lawyer gives reasonable warning, and that if the dispute impairs zealous representation the resulting conflict requires the lawyer to attempt to withdraw promptly.

Q: Can the lawyer take adverse procedural action, like a contempt motion, to protect the fee?

A: The opinion concluded the lawyer should not file a contempt motion that would not advance the client and could harm her, absent the client's consent, because Rule 4-1.7(b) bars action contrary to the client's interests without consent.

Background and rules framework

The opinion interprets Rule 4-1.7(b) (Model Rule 1.7), barring a lawyer from acting where the lawyer's own interests conflict with the client's, and Rule 4-1.16 (Model Rule 1.16) on withdrawal, including the grounds for withdrawal when a client fails to meet a financial obligation, the duty to continue if withdrawal is denied, and the duty to avoid foreseeable prejudice on withdrawal.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-1.7(b) / Model Rule 1.7 (conflict with lawyer's own interest)
• Fla. Rule 4-1.16(b)(4), (c), (d) / Model Rule 1.16 (withdrawal)

Cases:

• The Florida Bar v. Fields, 482 So. 2d 1354 (Fla. 1986), suit against a client for fees as a last resort

See also

• FL Bar Ethics Op. 88-11: Retaining Lien for Unpaid Costs
• FL Bar Ethics Op. 93-8: Withdrawal Denied With a Conflict
• FL Bar Ethics Op. 90-2: Reporting Clients to Credit Bureau

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-88-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-88-1-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 88-1
July 15, 1988
Advisory ethics opinions are not binding.

An attorney whose client has reneged on a fee agreement should not take action adverse to the client to enforce the agreement until the representation has been concluded, whether by withdrawal or by conclusion of the client's matter. If the client's breach of the fee agreement has made it impossible for the attorney to fulfill his obligation to place the client's interests ahead of his own, the attorney should seek to withdraw. An attorney should file suit against a client for fees only as a last resort.

RPC: 4-1.7(b), 4-1.16(b)(4), 4-1.16(c), 4-1.16(d)
Case: The Florida Bar v. Fields, 482 So.2d 1354 (Fla. 1986)

The inquiring attorney is currently representing a client against her former husband in a matter concerning, among other things, a motion for continuing writ of garnishment. At the time this representation was undertaken, an hourly fee was agreed upon. Client and attorney further agreed that, as the payments were received pursuant to the writ of garnishment, one half of each payment would go to the client and the other half would go to the attorney until his fees were paid in full. Additionally, it was agreed that if the court awarded attorney's fees to be paid by the former husband, any such fees collected would be credited against the fees paid or owed by the inquirer's client. However, on the day of the final hearing regarding the motion for continuing writ of garnishment, the client refused to sign an affidavit reflecting this agreement.

When the court granted the motion, the ex-husband's employer was ordered to send the garnishment checks to the attorney's trust account. The employer is instead sending the checks directly to the attorney's client. Further, the client is not complying with the agreement to pay the attorney one-half of each payment until the attorney's fees owed are fully paid. The hearing on the inquiring attorney's motion for attorney's fees and costs is set for September.

The inquiring attorney requests an opinion as to the ethically proper course of conduct to follow in light of the above facts. Specifically, he asks whether he should file a motion for contempt against the ex-husband's employer for sending the payments directly to the attorney's client rather than to his trust account as required by the court's order. He also asks whether he should withdraw from the representation and sue the client for the unpaid fees, or whether he should delay action of this type until after the September hearing on attorney's fees.

The attorney may not allow his personal interests to interfere with his ability to adequately represent his client. Furthermore, he may not take any action that might be contrary to his client's interests without her consent. Rule 4-1.7(b), Rules Regulating The Florida Bar. Accordingly, it would appear that the attorney should not file a motion to hold the employer in contempt. The client apparently is receiving the payments, so filing the motion would not advance the client's interests; in fact, it might be contrary to the client's interests if the attorney billed her for filing the motion. Of course, the motion could properly be filed with the client's consent.

Similarly, the attorney should not sue the client for fees while he is representing her.

The client's failure to fulfill her financial obligations to the attorney can furnish grounds for the attorney to withdraw from the representation after notifying his client of his intent to do so if the client fails to satisfy her obligations:

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(4) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled[.]

Rule 4-1.16(b)(4). In the situation presented, the inquiring attorney may remain as counsel for his client until after the attorney's fees hearing if his personal interests will not adversely affect the representation. He could withdraw following the hearing if the client's financial obligations had not been satisfied.

However, if the client's failure to comply with the fee agreement has adversely affected the attorney's ability to zealously represent the client, then this conflict of interests requires that the attorney promptly attempt to withdraw. Of course, if a motion to withdraw is denied, the attorney is ethically obligated to "continue representation notwithstanding good cause for terminating the representation." Rule 4-1.16(c). Furthermore, upon withdrawal an attorney must take steps to avoid foreseeable prejudice to the client as required by Rule 4-1.16(d).

There are situations in which suing a former client for unpaid fees may be necessary as a "last resort." Before instituting suit, the attorney should attempt to resolve the matter amicably. See The Florida Bar v. Fields, 482 So.2d 1354 (Fla. 1986). But if the inquiring attorney is put in such a situation, he is not ethically precluded from suing the client for the unpaid fee.