Ethics Opinon 1973-3

February 5, 1973

SUBJECT: REFUSAL TO PROCEED WITH ACTION UNTIL ATTORNEY'S FEES HAVE BEEN SATISFIED

I
QUESTION PRESENTED

An attorney and member of the San Diego County Bar Association represents a female petitioner in a dissolution action. Pursuant to order of court, the respondent husband was ordered to pay certain attorney's fees and costs. Respondent husband has not paid the above mentioned attorney's fees and costs and cannot be located for enforcement procedures. Petitioning wife desires entry of the Final Judgment of Dissolution. May the attorney refuse entry of the Final Judgment of Dissolution until such time as all attorney's fees and costs have been satisfied?

II
SUMMARY

No, it is not appropriate for an attorney to delay a case because of nonpayment of attorney's fees and at the same time continue to remain the attorney of record.

III
OPINIONS AND STATUTES

In Opinion No. 1968-16, 43 Journal of the State Bar of California, page 879, November-December, 1968, several questions were presented including a situation wherein the client-wife had agreed to pay attorney's fees prior to entry of the Final Judgment. No specific agreement existed relative to entry of the Final Judgment and the husband had been ordered to pay fees. The committee indicated as follows:

"An attorney should refrain from any action whereby, for his personal benefit or gain he abuses or takes advantage of the confidence reposed in him by his clients. (A.B.A. Canon Number 11). He would be taking advantage of his client if he insisted on payment, after suit was under way, before continuing with the case when such was not part of the agreement at the outset.

Despite a specific agreement between attorney and client that all fees be paid prior to entry of the Final Judgment, the committee had the following comment:

". . . it would not, in the Committee's opinion, be proper for him to delay the case until he is paid. If the client is deliberately disregarding an agreement or obligation relative to the payment of fees, the lawyer may be warranted in withdrawing, after due notice to his client. (Canon Number 44 of the Canons of Professional Ethics of the A.B.A.) * * * This committee does not believe it appropriate for an attorney to delay a case because of nonpayment of fees and at the same time continue to remain attorney of record. An attorney taking such position places himself in conflict with his client's legitimate interest in having the suit terminated with proper dispatch. Even though the client may have brought about the difficulties, nevertheless, the attorney cannot completely represent the best interests of his client and, therefore, should withdraw . . ."

In regard to a situation wherein the husband has been ordered to pay attorney's fees the committee's view was as follows:

This committee's view would not be changed if, in any of the foregoing instances, a court had ordered the husband to pay the attorney's fees and for some reason the husband had not complied with the order.

California Business and Professions Code section 6128 provides as follows:

Deceit, collusion, delay of suit and improper receipt of money as misdemeanors. Every attorney is guilty of a misdemeanor who either:

(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.

(b) Wilfully delays his client's suit with a view to his own gain.

(c) Wilfully receives any money or allowance for or on account of any money which he has not laid out or become answerable for.

IV
ANALYSIS

Although the above cited opinion is advisory only, it seems abundantly clear that an attorney cannot refuse entry of a Final Judgment until such time as attorney's fees are satisfied. The appropriate alternative is perhaps a formal withdrawal and a civil action for services rendered. It should also be added that past declarations for entry of Final Judgment required some statement relative to satisfaction of all terms set forth in the Interlocutory Judgment of Dissolution, presumably including attorney's fees and costs. This requirement has been specifically deleted from our present declarations, which would imply some impropriety in refusing to proceed without payment.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.