Can a lawyer have a client sign a confession of judgment as security for unpaid legal fees?

Plain-English summary

The committee assumed a fee arrangement satisfactory to both lawyer and client (EC 2-19) and was asked whether the lawyer could, as security for the fee, obtain the client's signature on an affidavit authorizing entry of judgment, with the understanding that the affidavit would be filed only if the client did not pay. The committee answered yes, subject to qualifications.

The committee said the practice is not per se improper, but, without passing on the legal effect of an affidavit confessing judgment executed before the services are performed, it concluded the lawyer should not obtain such an affidavit until after rendering the services (EC 5-7; DR 5-103(A)(1); Harris v. Harris, 84 Misc. 2d 893 (Sup. Ct. Kings Co. 1976)). Like any creditor, the lawyer would also be bound by the governing law, including CPLR 3218.

The committee cautioned that a lawyer using a confession of judgment should keep in mind EC 2-23, which discourages suing a client for a fee except to prevent fraud or gross imposition, and should observe the fee provisions of EC 2-17, 2-18, 2-19 and DR 2-106. It adopted the guidelines of N.Y. County 430 (1950): the confession must be taken as security for fees and not as payment; the amount must be agreed upon or fixed by a court (subject to CPLR 3218(a)); the amount must be commensurate with the value of the services rendered; and the client must be given a complete and full explanation of the character, effect and purpose of the document.

Finally, the committee said it would be improper to obtain a confession of judgment unless the client clearly understands its nature, and quoted N.Y. City 839 (1959) that a lawyer may not use this extraordinary practice with clients whose ignorance or language difficulties make it unlikely they will understand the full significance of a judgment against them, including its effect on credit standing and employment. The question was answered in the affirmative, subject to those qualifications.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (fees are now governed by Rule 1.5 and business or security interests touching a client by Rule 1.8). 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 Treat this page as historical context, not current guidance.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: Is a confession of judgment for legal fees automatically unethical?

A: Under this opinion, no. The committee held it is not per se improper to take one as security for an agreed fee, to be filed only if the client does not pay.

Q: When should the lawyer obtain the confession of judgment?

A: After rendering the services, not before. The committee said the lawyer should not obtain the affidavit until the services constituting the consideration have been performed.

Q: What protections did the committee require?

A: That the confession be security and not payment, that the amount be agreed or court-fixed and commensurate with the value of the services, and that the client receive a complete explanation of the document. It also barred using the device with clients whose ignorance or language barrier prevents understanding.

Background and rules framework

The opinion applies the fee rules DR 2-106 and EC 2-17 through 2-19 and 2-23, together with EC 5-7 and DR 5-103(A)(1) on a lawyer's acquisition of an interest connected to the representation. The current Model Rule analogues are Rule 1.5 (fees) and Rule 1.8 (business transactions with and security interests touching a client).

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees)
• MR 1.8 (conflicts: business transactions and interests adverse to a client)
• NY EC 2-17, EC 2-18, EC 2-19, EC 2-23, EC 5-7; DR 2-106, DR 5-103(A)(1)

Statutes:

• CPLR 3218 (affidavit of confession of judgment); CPLR 3218(a)

Cases:

• Harris v. Harris, 84 Misc. 2d 893, 378 N.Y.S.2d 298 (N.Y. Sup. Ct. Kings County 1976)

Other opinions cited:

• N.Y. County 430 (1950): guidelines for accepting a confession of judgment as fee security
• N.Y. City 839 (1959): not using the device with clients who cannot understand it
• N.Y. State 253 (1972); ABA Inf. 593 (1962)

See also

• NY State Bar Op. 1066: Guaranteeing a client's loan for legal fees
• NY State Bar Op. 1004: A counter-party attorney's excessive fee

Source

• Landing page: https://nysba.org/opinion-474/