Can a lawyer refuse to file or finalize a client's divorce decree until the client pays the legal fees that are owed?

Plain-English summary

The Committee addressed whether a lawyer representing a client in a divorce may withhold final judgment, by refusing to file the final divorce decree, until the lawyer's fee is paid in full. It concluded that doing so is unethical. Following ABA Informal Opinion No. 1455, the Committee reasoned that once the lawyer has moved a divorce case to judgment, he has an ethical duty to file the final divorce decree or notify the client that the proceedings are not finalized. The lawyer must also explain the client's status and rights, and that he will withdraw unless his fee is paid, and even then must seek to minimize harm to the client.

The Committee held that refusing to proceed to final judgment over nonpayment violates DR 5-101(A) (which bars allowing the lawyer's own financial interests to interfere with his professional judgment on the client's behalf), constitutes a failure to complete a contract of employment prohibited by DR 7-101(A)(2), and would likely violate DR 7-101(A)(3) (intentionally prejudicing or damaging the client). A lawyer may not delay completing the divorce action until his fee is paid, regardless of a fee agreement or a court order that another party pay the fee.

Where a client deliberately disregards a fee agreement, the lawyer may withdraw under DR 2-110(A)(1)(f), but under EC 2-32 and DR 2-110(A)(2) only after taking reasonable steps to avoid foreseeable prejudice: giving due notice, allowing time to employ new counsel, and delivering all papers and property to which the client is entitled. If the employment contract or a court order makes the opposing party responsible for the fee, the lawyer should exercise due diligence in representing the client and collect the fee from that party. A financially unable client's lawyer must nonetheless complete the work unless the client consents to termination, an approach the Committee said accords with Indiana State Bar Opinion 1-1978.

The Committee added that while DR 5-103(A)(1) permits a lawyer to acquire a lien granted by law to secure fees, ethical considerations may require foregoing a retaining lien over the client's papers if asserting it is inconsistent with public policy, the lawyer's responsibility to the client, or the lawyer's duty to the court. A retaining lien would be ethically justified only if a financially able client willfully refuses to pay an agreed fee that is due (ABA Informal Opinion No. 1461), but even that would not justify refusing to have the final divorce decree entered by the court.

Currency note

This opinion was issued in 1984, before West Virginia replaced its Code of Professional Responsibility (the DR and EC provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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: Could a lawyer hold up entry of a final divorce decree until the client paid?

A: No. The opinion concluded that a lawyer who has moved a divorce case to judgment has an ethical duty to file the final decree or notify the client it is not finalized, and that delaying completion over an unpaid fee violates DR 5-101(A), DR 7-101(A)(2), and DR 7-101(A)(3).

Q: Did it matter that the fee agreement or a court order made another party responsible for the fee?

A: No. The opinion held the lawyer may not delay completing the divorce action until the fee is paid, notwithstanding a fee agreement or a court order that another party pay it; instead the lawyer should collect the fee from the responsible party while diligently representing the client.

Q: Could the lawyer ever withdraw or assert a lien for nonpayment?

A: The opinion allowed withdrawal under DR 2-110(A)(1)(f) where the client deliberately disregards the fee agreement, but only after the EC 2-32 and DR 2-110(A)(2) steps to avoid prejudice. A retaining lien over papers would be ethically justified only where a financially able client willfully refuses an agreed fee, and even then it would not justify refusing to have the final decree entered.

Background and rules framework

The opinion applied the Code of Professional Responsibility provisions on a lawyer's own interests and zealous representation: DR 5-101(A) (declining employment where the lawyer's financial interests may affect his judgment), DR 7-101(A)(2) and (3) (failing to carry out a contract of employment and intentionally prejudicing the client), DR 2-110(A) and EC 2-32 (withdrawal and minimizing prejudice on withdrawal), and DR 5-103(A)(1) (liens to secure fees). It also tied its conclusion to the West Virginia Supreme Court of Appeals' divorce-recordation decisions, noting that a court rule withholding divorce orders for nonpayment of a statutory fee had been held unconstitutional, and that those decisions bear on lawyers because divorce commissioners appointed by circuit courts are licensed attorneys.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 5-101(A) (lawyer's financial interests interfering with professional judgment)
• DR 7-101(A)(2) and (3) (failure to complete employment; intentional prejudice to client)
• DR 2-110(A)(1)(f) and DR 2-110(A)(2); EC 2-32 (permissive withdrawal and steps to avoid prejudice)
• DR 5-103(A)(1) (acquiring a lien granted by law to secure fees and expenses)

Statutes:

• W. Va. Code § 59-1-11 (clerk's divorce-order recordation fee)
• W. Va. Code § 59-1-8 (commissioners refusing to hear cases or file reports until fees paid)
• W. Va. Const. art. III, § 17 (access to courts)

Cases:

• Humphrey v. Mauzy, 155 W. Va. 89, 181 S.E.2d 329 (1971), clerk cannot withhold divorce orders for failure to pay the recordation fee
• Nagy v. Oakley, 309 S.E.2d 68 (W. Va. 1983), W. Va. Code § 59-1-8 unconstitutional as applied to divorce actions
• National Sales & Service Co. v. Superior Court, 667 P.2d 738, 742 (Ariz. 1983) (Feldman, J., specially concurring), retaining liens and public policy

Other opinions cited:

• ABA Informal Opinion No. 1455 (June 4, 1980): duty to file the final divorce decree once judgment is reached
• ABA Informal Opinion No. 1461 (November 11, 1980): retaining lien justified where a financially able client willfully refuses an agreed fee
• Indiana State Bar Opinion 1-1978; and opinions from California, Arizona, New York City, New York County, New York State, Virginia, Idaho, North Dakota, San Diego County, Oregon, and Wisconsin bar associations, all holding a lawyer may not refuse to prosecute a client's case because his fee has not been paid in advance

See also

• WVSB Ethics Op. 85-3: Attorney interference with service of process
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ef10bdc30ceae449c.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 84-4

(November 30, 1984)

REFUSAL TO FILE FINAL DIVORCE DECREE UNTIL PAYMENT OF FEES

As a result of its disposition of a recent disciplinary matter, the Legal Ethics Committee deems it desirable to issue this advisory opinion on whether a lawyer representing a client in a divorce action may refuse to file the final decree until his fee is paid in full. We conclude that it is unethical for a lawyer to delay the completion of a divorce action until his fee is paid.

The American Bar Association's Committee on Ethics and Professional Responsibility addressed this question in Informal Opinion No. 1455 (June 4, 1980). The ABA Committee noted that when a divorce case reaches conclusion by the court, the judgment of divorce is not regarded as final until it is journalized, usually by entry of an order prepared by the successful party's lawyer. As the Committee recognized, the social relations changed by the final divorce decree have an effect on others in addition to the client. These are matters which should not be held in abeyance by an unentered divorce decree.

In Informal Opinion No. 1455 the ABA Committee concluded that while the lawyer may withdraw from a divorce proceeding at intermediate stages if the client defaults under a fee arrangement, assuming that appropriate steps are taken to avoid prejudice to the client, once the lawyer has moved the case to judgment he has an ethical duty to file the final divorce decree or to notify the client that the divorce proceedings are not finalized. The lawyer should also explain the client's status and rights to him, and he should further explain that he will withdraw from the case unless his fee is paid. Under any circumstances, the lawyer must seek to minimize any harmful consequences to the client.

It is our opinion that a lawyer's refusal to proceed to final judgment in a divorce action due to nonpayment of his fee violates the proscription in DR 5-101(A) against permitting his own personal or financial interests to interfere with the exercise of his professional judgment on behalf of a client. Furthermore, refusal to complete the divorce action would constitute a failure to complete a contract of employment, which is prohibited by DR 7-101(A)(2). Moreover, refusal to file the final divorce decree would likely violate DR 7-101(A)(3), which forbids a lawyer to intentionally prejudice or damage his client in the course of representation.

A lawyer may not delay completion of the divorce action until his fee is paid. This is so notwithstanding a fee agreement or court order that another party pay the fee. In case of a deliberate disregard of a fee agreement on the part of the client, the lawyer may withdraw from representation in accordance with DR 2-110(A)(1)(f). However, under EC 32 and DR 2-110(A)(2), the lawyer may not withdraw from representing the client until he has undertaken reasonable steps to avoid foreseeable prejudice to the client's rights. This includes giving due notice to the client, allowing time for the employment of new counsel, and delivering to the client all papers and property to which the client is entitled.

If the employment contract or a court order provides for the opposing party to pay the lawyer's fee, the lawyer should exercise due diligence in representing his client and should collect the fee from the other party. In cases where the client is financially unable to pay his lawyer's fee, the lawyer must nonetheless complete his work on the case unless the client consents to termination of his employment. Our opinion in this regard is in accord with Opinion 1-1978 of the Indiana State Bar Association.

DR 5-103(A)(1) of the Code of Professional Responsibility permits a lawyer to acquire a lien granted by law to secure his fees and expenses. However, ethical considerations may require the lawyer to forego asserting a retaining lien over his client's papers and property if such a possessory right is inconsistent with public policy, with the lawyer's responsibility to his client, or with the lawyer's duty to the court. [Special concurring opinion of Feldman, J., in National Sales & Service Co. v. Superior Court, 667 P.2d 738, 742 (Ariz. 1983).] Assertion of a retaining lien over the client's papers would be ethically justified, however, if a financially able client willfully refuses to pay an agreed-upon fee which is due, since such conduct would amount to gross imposition by the client. ABA Informal Opinion No. 1461 (November 11, 1980). While such conduct on the client's part might justify a lawyer in retaining the client's copy of a final divorce decree until his fee is paid, it would not justify his refusal to have the final divorce decree entered by the court.

Our holding that a lawyer may not ethically delay the completion of a divorce action until his fee is paid is consistent not only with the American Bar Association's position but also with opinions issued by a number of state and local bar associations. Among bar associations adopting the same or similar opinions are those in California (Opinion 1968-16, reported at 43 J.S.B. Cal. 879); Indiana (Opinion 1-1978, reported at 22 Res Gestae 318); Arizona (Opinion 47, issued September 4, 1959, and reported at 6 Ariz. B.J. 13, December, 1970); New York City (Opinion 364, issued March 25, 1936); New York County (Opinion 158, issued in 1918); New York State (Opinion 212, issued November 22, 1972, and reported at 44 N.Y.S.B.J. 126); Virginia (Informal Opinion 62); Idaho (Opinion June 26, 1973, reported at 16 Advocate 10); North Dakota (Opinion reported in Newsletter St. B.N.D., April, 1979); and San Diego County, California (Opinion 1973-3, issued February 5, 1973). Other state bar associations have issued opinions that it is unethical in general for a lawyer to refuse to further prosecute a client's case because his full fee has not been paid in advance. These jurisdictions include Minnesota (Opinion 4, October 12, 1973, reported at 30 Bench & B. Minn. 14); Oregon (Opinion 1, issued June 18, 1936); and Wisconsin (Memorandum Opinion 8-77, reported in Wis. B. Bull., June, 1979, supplement).

Our opinion on this issue is also in accord with decisions of the West Virginia Supreme Court of Appeals regarding divorce actions. In Humphrey v. Mauzy, 155 W. Va. 89, 181 S.E.2d 329 (1971), the Court held that a clerk cannot withhold divorce orders from recordation for failure to pay the $10.00 fee prescribed by W. Va. Code § 59-1-11. In Nagy v. Oakley, 309 S.E.2d 68 (W. Va. 1983), the Court held W. Va. Code § 59-1-8 to be unconstitutional when applied to divorce cases. That code section authorizes commissioners appointed by circuit courts to refuse to hear cases or to prepare or file reports until their fees are paid in advance. The Court held that the statute, when applied in the context of divorce actions, violated the prohibition in Article III, Section 17 of the West Virginia Constitution against the financial condition of litigants affecting the judicial process. We note that the Nagy decision bears directly upon practices by lawyers, as divorce commissioners appointed by circuit courts in West Virginia are licensed attorneys at law.