Can a lawyer delay a client's divorce case to pressure the client into paying fees?

Currency note

This opinion was issued in 1968, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former ABA Canons 11 and 44 and Business and Professions Code section 6128; diligence, withdrawal, and declining or terminating representation are today addressed by Model Rules 1.3 and 1.16. Subsequent rule amendments and statutes may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered several fee scenarios in a divorce case (where the fee was to be paid when the work was done, where the client agreed to pay before the interlocutory decree, and where no specific time of payment was set), and asked whether the attorney could delay the action until paid. Where no specific time of payment was agreed and it could fairly be implied that the fee was due when the work was done, the committee concluded it would not be ethical to delay the action until the fee was paid, because a lawyer should not, for personal benefit, take advantage of the confidence reposed by the client (former ABA Canon 11). Insisting on payment mid-case, when that condition was not part of the original agreement, would be such an abuse.

Where the client had agreed to pay before the interlocutory decree and failed to do so, the committee likewise concluded the lawyer could not delay the case until paid. If the client was deliberately disregarding a fee agreement, the lawyer might be warranted in withdrawing after due notice, consistent with former ABA Canon 44. The committee stated that it was not appropriate for an attorney to delay a case for nonpayment while continuing as attorney of record, because that places the lawyer in conflict with the client's legitimate interest in having the suit terminated with proper dispatch; even if the client created the difficulty, the lawyer could not fully represent the client's best interests and therefore should withdraw. The committee cited Business and Professions Code section 6128, which makes it a misdemeanor for an attorney willfully to delay a client's suit for the attorney's own gain. It added that, if a client who agreed to pay before the decree was unable to do so because of misfortune but asked that the case not be delayed, the attorney should seriously consider proceeding, having undertaken to obtain the divorce. A court order that the husband pay fees, unenforced or unenforceable, did not change these views.

The opinion includes a dissent addressed to the second scenario (a contract to pay before the interlocutory decree). The dissenting member noted that the ABA Canons are not binding on the State Bar, which decides each ethics question for itself, and argued that the requests (which came from legal aid offices) reflected social or financial questions rather than ethical ones. The dissent contended that declaring an indigent's contract unethical because of inability or unwillingness to pay treats the client as incapable of contracting, that legal services for a divorce are a commodity, and that the majority's approach would, as a practical matter, lead lawyers in counties without legal aid to demand the full fee and costs in advance, urging a more comprehensive review of the consequences for contracts, clients' remedies, and attorney fees.

Common questions

Q: Could a lawyer stall a divorce case until the client paid the fee?

A: No, not while remaining attorney of record. The committee concluded that delaying a case for nonpayment conflicts with the client's interest in prompt resolution and that a lawyer should not stall the case for personal gain.

Q: What is the proper remedy when a client deliberately fails to pay?

A: The committee said the lawyer may be warranted in withdrawing on due notice to the client, allowing time to employ another lawyer, consistent with former ABA Canon 44.

Q: Was there a statute on point?

A: Yes. The committee cited Business and Professions Code section 6128, which makes it a misdemeanor for an attorney willfully to delay a client's suit with a view to the attorney's own gain.

Q: Did the committee speak with one voice?

A: No. A dissenting member addressed the scenario of a contract to pay before the interlocutory decree, arguing the questions were social or financial rather than ethical and warning of practical consequences for clients in counties without legal aid.

Background and rules framework

The opinion interprets former ABA Canons 11 (not abusing the client's confidence for the lawyer's gain) and 44 (withdrawal on due notice when a client deliberately disregards a fee obligation), together with Business and Professions Code section 6128. Diligence and the rules governing declining or terminating representation are now addressed by Model Rule 1.3 (diligence) and Model Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• Former ABA Canons 11 and 44
• Current analog: Model Rules 1.3 and 1.16

Statutes:

• California Business and Professions Code section 6128

Cases (cited in the dissent as not on point):

• Trusty v. State Bar (1940) 16 Cal.2d 550
• Chaves v. Carter (1967) 256 Cal. App.2d 57 [64 Cal. Rptr. 350]

Other authorities:

• Drinker, Henry S., Legal Ethics (1953) p. 140.

See also

• CA Ethics Op. 1967-11: Candor to Opposing Counsel

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1968-16.htm

Original opinion text

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

Ethics Opinions - FORMAL OPINION NO. 1968-16

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 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.