Can a Kentucky lawyer sue a client to collect an unpaid fee, or bring theft-of-services criminal charges for nonpayment?

Plain-English summary

The committee answered two fee-collection questions, both with a qualified yes. On suing a client for a fee, it reasoned from EC 2-23, which aspires that a lawyer avoid fee controversies and not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client. The committee noted that the Ethical Considerations are aspirational while the Disciplinary Rules are mandatory, and that no disciplinary rule actually prohibits suing to collect a fee. It concluded that suing a client may sometimes be necessary within EC 2-23, and listed steps a lawyer should consider before suit: send a written demand; consider advising the client about arbitration through the Kentucky Bar Association's Fee Arbitration Panel; and weigh each case on its own merits without fixed time or dollar thresholds, asking whether fraud or gross imposition has occurred. The committee said "gross imposition" may be defined as a client who has the ability to pay a legal fee and does not.

On filing criminal charges for nonpayment under KRS 514.060 (theft of services), the committee again said qualified yes, but with a sharp limit drawn from DR 7-105, which bars a lawyer from presenting, participating in presenting, or threatening criminal charges solely to obtain an advantage in a civil matter. It cited Bluestein v. State Bar of California, where a lawyer was suspended for agreeing to drop criminal charges if the fee was paid. The committee identified two legitimate alternatives, a civil suit or theft-of-services charges, but stressed that bringing criminal charges impliedly certifies the action is brought in the interest of justice rather than to collect the fee. Accordingly the lawyer must fully prosecute the case to conclusion; if the judge orders restitution the lawyer may accept payment, but the lawyer should not dismiss the case once brought simply because the client pays. The lawyer remains subject to DR 7-102(A)(1) and (2) not to bring an action merely to harass or one unwarranted under existing law.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. 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 rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Kentucky lawyer sue a client to collect an unpaid fee?

A: Yes, with a qualification. The opinion concluded that under EC 2-23 a lawyer should sue only where necessary to prevent fraud or gross imposition, and listed written demand and consideration of fee arbitration as steps to take first.

Q: What did the committee mean by "gross imposition"?

A: It said the term may be defined as a client who has the ability to pay a legal fee and does not pay it.

Q: Can a lawyer file criminal theft-of-services charges for an unpaid fee?

A: Yes, but only if genuinely pursued. The committee said the lawyer must fully prosecute the case to conclusion and may not dismiss it once brought simply because the client pays.

Q: Can a lawyer threaten criminal charges to get the fee paid?

A: No. DR 7-105 bars presenting or threatening criminal charges solely to gain an advantage in a civil matter; the committee cited a California case suspending a lawyer who offered to drop charges if the fee was paid.

Background and rules framework

The opinion applies the fee-controversy aspiration of EC 2-23, the prohibition on using criminal charges for civil leverage in DR 7-105, and the limits of DR 7-102(A)(1) and (2) on harassing or unwarranted actions, in light of KRS 514.060 (theft of services). The modern analogs are Model Rule 1.5 (fees), Model Rule 4.4 (respect for the rights of third persons), and Model Rule 8.4 (misconduct). Kentucky did not carry forward a direct equivalent of DR 7-105 into the Model Rules, but the conduct it targets, threatening prosecution to extract a civil payment, remains constrained by these provisions.

Citations and references

Rules of Professional Conduct:

• EC 2-23 (avoiding fee controversies; suing only to prevent fraud or gross imposition); DR 7-105 (no threatening criminal charges for civil advantage); DR 7-102(A)(1) and (2); modern analogs Model Rules 1.5, 4.4, and 8.4

Statutes:

• KRS 514.060 (theft of services)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for lawyer advertising
• Kentucky Bar Assn v. Stuart, 568 S.W.2d 933 (Ky. 1978), erosion of older restrictions on the profession
• Bluestein v. State Bar of California, 529 P.2d 599 (Cal. 1974), suspension for offering to drop criminal charges in exchange for fee payment

Other authorities cited:

• ABA Formal Opinion 250 (1943); 91 ALR3d 583 (fee-collection discipline)

See also

• KBA Ethics Op. E-247: Skipping Court Over Unpaid Fees
• KBA Ethics Op. E-265: Threatening a Bar Complaint
• KBA Ethics Op. E-233: Offsetting Unrelated Fees Against Client Funds

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-237.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-237
Issued: July 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May a lawyer sue a client in order to collect a fee?

Answer 1:

Qualified yes.

Question 2:

May a lawyer file criminal charges for failure to pay attorney fees under KRS 514.060?

Answer 2:

Qualified yes.

References:

EC 2-23, 7-21; DR 7-1O5, 7-102(A)(1)(2); ABA Formal Opinion 250; SCR 3.130; Bates v. Arizona, 433 U.S. 350 (1977); Kentucky Bar Assn v. Stuart, 568 S.W.2d 933 (Ky 1978); Bluestein v. State Bar of California, 529 P.2d 599 (Cal. 1974); KRS 514.060; 91 ALR3d 583

OPINION

Although recent cases have tended to erode certain time honored aspects of the profession (see Bates and Stuart), it is the feeling of the Ethics Committee that we still are a profession and not a business. Ours is a learned profession, not a mere money-getting trade. ABA Formal Opinion 250 (1943). Prior to the Code of Professional Responsibility the ABA Canon 14 provided in essence that a lawyer should only sue to collect a fee to prevent injustice, imposition, or fraud.
With the adoption of the Code of Professional Responsibility the applicable section is EC 2-23.
A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.
The Ethical Considerations (EC) are by definition in the Code, aspirations towards which every member of the profession should strive. Disciplinary Rules (DR's) are mandatory in character and state the minimum level of conduct.

EC 2-23 accordingly is one which lawyers should strive towards. There is no disciplinary rule which would prevent a lawyer from suing to collect a fee.
SCR 3.130 provides also that unprofessional or unethical conduct tending to bring the bench and bar into disrepute are standards to the legal profession.
In 91 ALR3d 583 there is an excellent discussion of the practices of which attorneys have been disciplined for fee collection practices, none of which involve a Kentucky lawyer.
It seems clear to the Ethics Committee that from time to time it may be necessary to sue a client in order to collect a fee within EC 2-23. Accordingly, the Ethics Committee considers, before a lawyer sues to collect a fee, the following things should be considered prior to suit:

1. Demand in writing should be sent by the lawyer to the client.
2. The lawyer should consider whether to advise the client of entering into an agreement to arbitrate under the Kentucky Bar Association's Fee Arbitration Panel.
3. A lawyer should consider the case on its own merits. No set time lengths or amounts of money should be used as a definite standard in filing suit. In each case a lawyer should consider whether fraud or gross imposition by the client has been met. It is the feelings of the Ethics Committee that the words "gross imposition" may be defined as when a client has the ability to pay a legal fee and does not pay a legal fee.
   Assuming that all of the above are met then the lawyer may properly bring suit for collection of the legal fee. With respect to Question 2 the Committee is of the opinion that to bring criminal charges against a client for failure to pay a fee may be in direct violation of DR 7-105 which provides as follows:
   (A) A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.
   In Bluestein v. State Bar of California, 529 P.2d 599 (Cal. 1974), the court gave a six-months suspension to the lawyer for an improper fee collection method, where the attorney agreed to drop criminal charges he had preferred against his client's husband if the husband would pay his fee owed to the attorney for representing the wife in a divorce proceeding.
   It is the feeling of the Ethics Committee that a lawyer faced with the problem of collecting a fee has two legal alternatives:
4. The lawyer may file a civil suit for the collection of the fee,
5. The lawyer may file criminal charges under KRS 514.060, Theft of Services.

A lawyer, being an officer of the court, should give considerable thought prior to bringing criminal charges against a client for failure to pay a legal fee. A lawyer would be subject to DR 7-102(A)(I) and (2) in that he would not be bringing the action merely to harass or bring an action that is unwarranted under existing law.
Thus, by filing criminal charges a lawyer impliedly certifies that the action is brought not for the purpose of collecting the fee but in the interest of justice. Accordingly, the lawyer must fully prosecute the case to its conclusion. In the event the judge orders restitution to the lawyer the lawyer may accept payment of the fee. However, the lawyer should not dismiss the case once brought upon payment of the fee by the client.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.