Ezel / Ethics Opinions / NYSBA
NYSBA 2017-10-09

Can a divorce lawyer's retainer authorize charging the client's credit card for bills left unpaid?

Short answer: The committee cannot say; it turns on a question of law. Rule 1.5(d)(2) bars a fee prohibited by law or court rule, and whether a credit-card authorization is a 'security interest' under 22 NYCRR 1400.5 (needing a retainer term, notice to the spouse, and court approval) is outside the committee's jurisdiction.
Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1134: Credit card to secure fees in a divorce matter

Short answer: Whether a lawyer's retainer in a domestic relations matter may authorize charging the client's credit card for unpaid bills depends on whether that authorization is a "security interest" under 22 NYCRR 1400.5, which is a question of law beyond the committee's jurisdiction to decide.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer who handles domestic relations matters wants to add a clause to a standard retainer authorizing the lawyer to charge the client's credit card, on file, for any bill left unpaid more than 20 days. In N.Y. State 1112 (2017), the committee had approved a credit-card-on-file arrangement for legal fees generally, subject to safeguards (the client is told of the right to dispute a bill, and no disputed amount is charged). But it had not addressed how that interacts with court rules for domestic relations matters.

Here the committee concludes those court rules take precedence over the Rules. Rule 1.5(d)(2) bars a lawyer from charging or collecting a fee "prohibited by law or rule of court." Domestic relations practice is governed by 22 NYCRR Part 1400, including 1400.5, which lets a lawyer take "a confession of judgment, take a lien on real property, or otherwise obtain a security interest" to secure a fee only where the retainer provides for it, notice is given to the other spouse, and the court approves after a fee application. Resolving the inquiry would require deciding whether the proposed credit-card authorization is a "security interest" within 1400.5, which is solely a question of law the committee cannot decide.

In practice

The committee did not decide whether this practice is permitted; it held the answer depends on a question of law it cannot reach. Under Rule 1.5(d)(2), a domestic relations fee arrangement is impermissible if it violates a law or court rule, and whether charging a client's credit card for unpaid divorce-matter fees is a "security interest" governed by 22 NYCRR 1400.5 (which would require a retainer provision, notice to the adversary spouse, and court approval) is outside the committee's jurisdiction. A lawyer facing this question should look to Part 1400 and applicable law for the controlling answer.

Common questions

Q: Did the committee approve or forbid charging a divorce client's credit card?

A: Neither. It held the question turns on whether the authorization is a "security interest" under 22 NYCRR 1400.5, a legal question it cannot decide (Opinion 1134 ¶¶ 6-7).

Q: Hadn't the committee already approved credit-card-on-file arrangements?

A: Yes, for legal fees generally in N.Y. State 1112 (2017), but it had not addressed domestic relations matters, where Part 1400 court rules take precedence over the Rules (¶ 3).

Q: What does Rule 1.5(d)(2) add here?

A: It bars a fee "prohibited by law or rule of court," which routes the analysis to 22 NYCRR Part 1400 rather than to the Rules alone (¶ 4).

Background and rules framework

The opinion applies Rule 1.5(d)(2) (Model Rule 1.5), which prohibits a fee arrangement "prohibited by law or rule of court," and reads it together with the New York court rules for domestic relations matters at 22 NYCRR Part 1400, particularly 1400.5 on security interests for fees. The committee's jurisdiction is limited to the Rules, so it does not interpret Part 1400.

Citations and references

Rules of Professional Conduct:

  • New York Rule 1.5(d)(2) (Model Rule 1.5): no fee prohibited by law or rule of court

Court rules (not interpreted by the committee):

  • 22 NYCRR 1400.5: security interests for fees in domestic relations matters (retainer provision, notice to the spouse, court approval)

Other opinions cited:

  • N.Y. State 1112 (2017): credit-card-on-file authorization for legal fees, with dispute safeguards

See also

Source