May an attorney who has obtained a default divorce for a client refuse to file or furnish the formal decree until the client pays the fee?

Plain-English summary

The committee was advised that some attorneys were bringing clients before the court for a default divorce and obtaining the adjudication, but then refusing to have a formal decree entered, or to furnish the decree to the client, until paid their fee. It was asked whether this is proper.

The committee concluded the practice is professionally improper. It reasoned that the determination of causes and the judgments and decrees based on them are peculiarly within the province of the court, and that in preparing and filing the formal decree an attorney acts not only for his client but also as an officer of the court. The conduct, it said, is an unwarranted interposition of the attorney between the judicial process and the rights of the litigants to serve the attorney's own ends, and is unethical.

Anchoring the conclusion to the canons, the committee said that having represented the client and obtained the adjudication, the attorney's duty to his client under Canon 11 and his duty to the court under Canon 22 require him promptly to complete the steps necessary to formalize the court's action. The duty to protect the client's interest, it stressed, must not be subordinated to the client's obligation to pay for the attorney's services. It cited opinions of the Association of the Bar of the City of New York (Opinion 364) and the New York County Lawyers' Association (Opinion 158), and Drinker, Legal Ethics, page 93.

Currency note

This opinion was issued in 1965, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Subsequent rule amendments or later opinions may have changed the analysis, including the modern rules on retaining liens and on protecting a client's interests on termination. Treat this page as historical context, not current guidance.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: Could an attorney hold back a client's divorce decree until the bill is paid?

A: No. The committee held it professionally improper to refuse to file or to furnish the decree to the client as a means of forcing payment of the fee.

Q: Why did the committee treat filing the decree as more than a private matter?

A: It reasoned that in preparing and filing the formal decree the attorney acts as an officer of the court, so withholding it interposes the attorney between the judicial process and the litigants' rights for his own ends.

Q: How did the committee weigh the unpaid fee against the client's interest?

A: It said the duty to protect the client's interest must not be subordinated to the client's obligation to pay, citing the attorney's duties under Canons 11 and 22.

Background and rules framework

The opinion applied Canon 11 of the Canons of Professional Ethics, adopted in Oklahoma (a lawyer's duty regarding the client's affairs and property), and Canon 22 (candor and the duty to the court), to an attorney's withholding of a divorce decree to compel fee payment. It relied on New York City and New York County bar opinions and on Drinker's Legal Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 11 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): the lawyer's duty regarding the client's affairs.
• Canon 22 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): candor and the lawyer's duty to the court.

Other opinions cited:

• Association of the Bar of the City of New York, Committee on Professional Ethics, Opinion 364.
• New York County Lawyers' Association, Committee on Professional Ethics, Opinion 158.

Other references:

• Drinker, Legal Ethics, p. 93.

See also

• Okla. Bar Ethics Op. 229: Bondsman referral fees and bond schemes
• Okla. Bar Ethics Op. 220: Habitual fee cutting below the minimum fee schedule
• Okla. Bar Ethics Op. 210: A finance company financing a debtor's bankruptcy

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-234/

Original opinion text

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

Adopted November 11, 1965

INQUIRY

The Committee has been advised that some attorneys are following the practice of bringing clients before the Court for a default divorce, obtaining the adjudication, but then refusing to have a formal decree entered or to furnish the decree to the client until the attorney is paid his fee. The opinion of the Committee has been asked as to whether this is proper conduct on the part of such attorneys.

Divorce–Having obtained a divorce for his client, it is improper for an attorney to refuse to file the decree or to refuse to furnish the decree to client until the attorney has been paid his fee.

Fees–Attorney’s duty to protect interests of his client must not be subordinated to client’s obligation to pay for the attorney’s services.

OPINION

In the opinion of the Committee, such action is professionally improper. The determination of causes and the judgments and decrees based thereon are peculiarly within the province of the Court. In the preparation and filing of the formal decree an attorney acts not only on behalf of his client but also as an officer of the Court.

The conduct described constitutes an unwarranted interposition of the attorney between the judicial process and the rights of the litigants for the purpose of serving the ends of the attorney, and is unethical.

Having represented the client and obtained the adjudication the attorney’s duty to his client under Canon 11 and his duty to the Court under Canon 22 require him promptly to complete those steps necessary to formalize the action of the Court.

The duty of the attorney to protect his client’s interest must not be subordinated to the client’s obligation to pay for the attorney’s services. See Opinion 364, Committee on Professional Ethics of the Association of the Bar of the City of New York and Opinion 158, Committee on Professional Ethics, New York County Lawyers’ Association. See also Drinker, Legal Ethics, page 93.