Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it proper for an attorney to delay a divorce action until his fees are paid?
Business and Professions Code section 6128.
The opinion of this Committee is sought on the propriety of a member of the State Bar delaying the entry of a default, the obtaining of an interlocutory decree, or the entry of the final decree until his fees are paid in a divorce case he is handling for a wife. The inquiry cites four examples, as follows:
1. The attorney and his client, the wife, agree that she will be primarily responsible for the fee of $250.00 or $300.00; that he will attempt to obtain it from the husband but will look to her whether he collects from the husband or not.
2. Identical to paragraph 1 except that the attorney, in addition, spells out to the client either orally or in writing that he expects to be paid in full prior to obtaining the Interlocutory Decree for his client.
3. No specific agreement is made between the attorney and the client as to the time or manner of payment but it is understood that the attorney expects to obtain his stated fee from either his client, from the husband or from someone.
4. No matter which of the previous three alternatives occurs, the defendant husband may be ordered to pay attorney's fees and court costs at the Order to Show Cause hearing, but the attorney either fails to enforce the order or it proves to be unenforceable."
If, as in examples 1 and 3, an attorney and the client made no specific agreement relative to the time of payment of the fee, and it could be fairly implied that the fee was to be paid when the work was done, it is the opinion of this Committee that it would not be ethical for the attorney to delay the action until his fee was paid. 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 client ([former] canon 11, Canons of Ethics of the American Bar Association). He would be taking advantage of his client if, after suit was underway, he insisted on payment before continuing with the case when such a condition was not part of the agreement at the outset.
If, as in example 2, the client has agreed to pay the attorney before an interlocutory decree is obtained or before some other step in the action is taken, and fails to do so, it would not, in the Committee's opinion, be proper for the lawyer 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 from the case, after due notice to his client. [Former] canon 44 of the Canons of Professional Ethics of the American Bar Association provides, in part:
"If the client...deliberately disregards an agreement or obligation as to fees or expenses, the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer."
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 the attorney of record. An attorney taking such a position places himself in conflict with his client's legitimate interests 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. (See Bus. & Prof. Code, Section 6128, which makes it a misdemeanor for an attorney wilfully to delay his client's suit with a view to his own gain; note Drinker, Legal Ethics (1953) p. 140 on the general topic of a lawyer's request to withdraw.)
If, because of misfortune, a client who has agreed to pay before an interlocutory decree is obtained is unable to make the payment but requests that the divorce case not be delayed, the attorney should seriously consider proceeding with the case. The attorney undertook to obtain a divorce and should carry out that undertaking even if his client is unable to pay his fee before the case is completed.
This Committee's views 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.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
This dissent is concerned only with the Committee's Opinion in response to Example No. 2 of the above-referenced opinion in which there is a contract between client and attorney, to wit:
"1. The attorney and his client, the wife, agree that she will be primarily responsible for the fee of $250.00 or $300.00; that he will attempt to obtain it from the husband but will look to her whether he collects from the husband or not.
2. Identical to paragraph 1, above, except that the attorney, in addition, spells out to the client either orally or in writing that he expects to be paid in full prior to obtaining the Interlocutory Decree for his client."
It is my understanding that the Canons of Professional Ethics of the American Bar Association, which are referred to in the first paragraph of the reasoning of this opinion, are not binding upon the State Bar of California, and, while we do refer to them as guidelines and as being indicative of the position of a large voluntary organization, the State Bar of California examines and determines for itself each question of legal ethics as it is presented.
In considering the question posed in Example No. 2, it is interesting to note that this request has reached the Committee from an attorney employed by the Legal Aid Foundation of one of California's major metropolitan centers; incidentally, the Committee also has before it another request of similar import on the letterhead of a Neighborhood Legal Aid Office in a somewhat smaller California community (which request cites two cases: Trusty v. State Bar (1940) 16 Cal.2d 550 and Chaves v. Carter (1967) 256 Cal. App.2d 57 [64 Cal. Rptr. 350], neither of which is on point). It would seem, because of the source of these requests, that they reflect questions which are social or financial rather than ethical. Legal Aid, being the forum for handling indigent legal questions, is concerned and confronted with persons who contract not only for legal services but for all kinds of commodities for which they become financially embarrassed.
To declare that an indigent's contract is unethical because of his inability or unwillingness to pay is to indirectly determine that he is also incompetent and incapable of contracting and should be in some special class of protection which determines, after the fact, the extent to which third persons may deal with him.
The service of an attorney in securing a divorce is a commodity for sale in the marketplace. There is no law which declares that divorces are mandatory, necessary and required legal remedies without which great harm can be done. In other words, divorces per se are not extraordinary remedies in the nature of an order to show cause or injunction, and we are not here concerned with any of these remedies, which may be one aspect of a divorce, but only with the entry of the interlocutory or final decree.
The posed question needs to be faced squarely for what it actually is: a contract which one of the parties either cannot or will not perform and which he then seeks to have declared unethical, in order to be relieved of an onerous burden by placing the blame for his delict on the other party.
To declare such a contract unethical is a strange approach for the legal mind in arriving at a decision of what, if any, remedy or relief exists for the delict of one party to a contract.
If, in fact, a problem exists, in that indigents cannot afford divorces, then divorces should be declared by law a necessity and a relief of absolute right, and provision made to finance them. The question should be treated for what it is, not circumvented by some labored reasoning concerning ethics which affects the entire field of contract law.
Without belaboring the point, it seems that some attention should also be directed to the practical aspects of this question.
The opinion as now proposed would virtually eliminate divorces in approximately 35-40 counties in the State: those counties in which no legal aid exists. My fellow members of the Committee on Professional Ethics practice in large metropolitan areas and their experience and practice probably do not include an extensive exposure to the client with, say, $75.00-$100.00, who wants to start a divorce. In this "dollar down, dollar a week" society, contracting for time payments is an acceptable method to the client and, of necessity, also to the attorney. To uphold the proposed opinion, no lawyer could afford to render divorce services but would, and I can assure you will, require the entire fee plus costs in advance (in Lassen County the minimum fee schedule lists $300.00, which includes one order to show cause; costs are approximately $41.00 more). There is no legal aid to which the client can go to get a "free divorce" in these counties.
This opinion then also affects the really important extraordinary remedies of an order to show cause or an injunction, either of which may be a real and necessary protection to the client.
I respectfully submit that this question deserves a more comprehensive review, with an appreciation of the far reaching results to contracts, clients' remedies, and attorney fees.
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