Can a lawyer take his fee out of client money he is holding in trust when the client owes him but hasn't paid?

Plain-English summary

An attorney was paid a retainer in a criminal case; at its conclusion the client owed more than $4,000 above the retainer. Before serving jail time, the defendant asked the lawyer to hold $3,500, which the lawyer placed in a trust account, later withdrawing some at the client's request. A balance of $2,563.94 remained. The defendant, now out of jail, had neither claimed the balance nor paid the attorney more, and did not contest the amount owed. The inquiry asked whether the attorney could apply the trust money toward his fee.

The committee concluded the attorney may transfer the funds he holds for the client to pay his fee, provided he gives the client written notice of his intention to withdraw the money and the client affirmatively consents (in writing or otherwise) under former Rule 9-102. Although the Code did not require written consent, the committee noted that In re Ushijima (Ill. 1987) suggests writing is preferable; there, where an attorney's authority to withdraw trust funds for fees was disputed, the disciplinary Hearing Board concluded the authority should have been in writing.

Currency note

This opinion was issued in May 1988, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule (Rule 1.15 with its Comment [3]), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer pay himself from client money held in trust?

A: The opinion concluded yes, but only after giving the client written notice of the intention to withdraw and obtaining the client's affirmative consent.

Q: Does the client's consent have to be in writing?

A: Per the opinion, the Code did not require written consent, but In re Ushijima suggests writing is preferable, since a disciplinary board found the withdrawal authority should have been in writing.

Q: Does it matter that the client did not contest the amount owed?

A: The opinion still conditioned the transfer on prior written notice and the client's affirmative consent; an undisputed balance alone did not authorize the lawyer to take the funds.

Background and rules framework

The opinion applied former Illinois Code Rule 9-102, governing the safekeeping, notice, and delivery of client funds held by a lawyer. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.15, corresponding to ABA Model Rule 1.15 on safekeeping property.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 9-102 (former Code, applied in the opinion)
• Illinois RPC 1.15 (2010 equivalent per the Board's affirmation)
• MR 1.15 (safekeeping property)

Cases:

• In re Ushijima, 119 Ill. 2d 51, 518 N.E.2d 73 (Ill. 1987), authority to withdraw trust funds for fees should be in writing

Other opinions cited:

• ISBA Opinion Nos. 703 and 534

See also

• ISBA Ethics Op. 88-04: Settling a Case When the Client Cannot Be Found
• ISBA Ethics Op. 87-10: Charging a Client Interest on Past-Due Bills and Advanced Expenses

Source

• Landing page: https://www.isba.org/ethics/opinions/8815