Can a lawyer keep a client's trust funds based on a casual note saying he is 'welcome to' them?

Plain-English summary

A member represented a wife in a divorce suit; before the final hearing, the husband-defendant died, leaving two life insurance policies worth about $1,200 payable to the client. The lawyer received the insurance proceeds by mail but could not locate his client, who had sold her home, taken her children out of school, and remarried. The following December he received a Christmas card, mailed in his city with no return address, stating he was welcome to the insurance collections. He held the funds in his trust account, had received no fees for the divorce, the estate settlement, or other matters he handled for her, and had advanced various costs. He asked whether he could withdraw the funds per the Christmas-card instruction and how to handle the matter.

The committee said this was not strictly an ethical matter but more a legal one. It noted that lawyers have liens on funds in their hands for payment of their fees, and that where a fee has been determined it may be deducted from the client's money in the attorney's hands, citing 3 Fla. Jur., Attorneys, Sec. 63, with the fee having to be earned, due, and the client informed of the amount. The committee suggested the member determine a reasonable fee for the services rendered, add the costs, and subtract that from the amounts received. It did not consider the client's Christmas-card statement that he was welcome to the funds sufficient justification for accepting them.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 12 of the Canons of Professional Ethics and referred to Rule 11.02(4) of the Integration Rule; a lawyer's fee and the handling of client funds are now addressed by Rules 4-1.5 (fees), 4-1.15 (safekeeping property), and 5-1.1 (trust accounts) of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.15). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Did the client's note authorize the lawyer to keep all the money?

A: No. The committee said the Christmas-card statement that the lawyer was welcome to the funds was not sufficient justification for accepting them.

Q: How should the lawyer take his fee from the held funds?

A: By determining a reasonable fee for the services rendered, adding the costs advanced, and subtracting that from the amounts received, with the fee having to be earned, due, and the client informed of the amount.

Background and rules framework

The opinion applied former Canon 12 of the Canons of Professional Ethics, with a caveat referring to Rule 11.02(4) of the Integration Rule. A lawyer's fee and handling of client funds are now addressed by Rules 4-1.5, 4-1.15, and 5-1.1 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.15). The committee treated the entitlement to the funds as a legal question about the attorney's lien, citing 3 Fla. Jur., Attorneys, Sec. 63.

Citations and references

Rules of Professional Conduct:

• Canon 12 [Canons of Professional Ethics; see current Rules 4-1.5, 4-1.15, 5-1.1]
• Integration Rule 11.02(4) (caveat noted in the opinion)

Other authorities:

• 3 Fla. Jur., Attorneys, Sec. 63

See also

• FL Bar Ethics Op. 61-33: Tendering a Fee Dispute With a Subrogated Insurer to Court

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-15/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-15-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 61-15
September 21, 1961
Advisory ethics opinions are not binding.
The fact that a client, whom he is unable to locate, states in a Christmas card to him that the lawyer "is welcome to" funds he holds for her, is not sufficient justification for accepting same. The lawyer should determine a reasonable fee for services rendered, add any costs advanced, and subtract the same from amounts received.
Caveat: See Rule 11.02(4), Integration Rule of The Florida Bar.
Canon: 12
Chairman Holcomb stated the opinion of the committee:
As we understand the facts, a member of The Florida Bar represented the wife in a divorce suit, and prior to the final hearing the husband-defendant died. At the time of his death there were two life insurance policies with benefits available to his client amounting to some $1,200. He later received payment of the insurance amounts by mail but was then unable to locate his client and found that she had sold her home, taken her children out of school, remarried, and that the children had married. His attempts to locate his client were unsuccessful. The following December he received a Christmas card in which she stated that he was welcome to the insurance collections. The postmark on the card showed it was mailed in his city but it had no return address. He is holding the funds in his trust account. He has not received any fees from his client for the divorce matter nor for handling the settlement of the husband's estate. He also handled other legal matters for his client. He has advanced various sums as costs, and now desires to know whether he is entitled to withdraw the funds in accordance with the instructions contained in the Christmas card and how he should handle the matter.
We do not believe this is strictly an ethical matter but more of a legal matter. Lawyers have liens on funds coming into their hands for payment of their fees, and where a fee has been determined it may be properly deducted from money in the hands of an attorney belonging to the client. See 3 Fla. Jur., Attorneys, Sec. 63, page 398. The fee, of course, has to be earned and be due and the client informed of the amount.
We suggest that the member determine what is a reasonable fee for the services rendered and add the costs thereto and subtract the same from the amounts received. We do not consider that the statement made by the client in her Christmas card that he is welcome to the funds would be sufficient justification for accepting the same.