Can a lawyer apply fees and costs from one settled case against settlement money held for a separate case?

Plain-English summary

A member's client had agreed to settle two personal injury cases and had the settlements announced in open court, but then refused to sign releases in one of the cases. The lawyer received payment in the case where releases were signed and held the funds in his trust account. He asked the committee to approve charging his fees and expenses for both cases against the settlement received in the one case.

The committee said it could not give its approval, viewing the problem as more one of law than of ethics, and suggested that the matter be presented to the court by a petition for instructions. It observed that the lawyer had clearly earned his fees in the one case and could deduct them from the amounts received there. As to the other case, the committee suggested he might present a petition to the court for instructions, or ask the court for leave to withdraw as counsel and have a lien for fees declared by the court against any subsequent settlement.

Currency note

This opinion was issued in 1962, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 14 of the Canons of Professional Ethics; the handling of client funds and a lawyer's fees and liens is now addressed by Rules 5-1.1 (trust accounts), 4-1.15 (safekeeping property), and 4-1.16 (declining or terminating representation) of the Rules Regulating The Florida Bar (Model Rules 1.15 and 1.16). 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 Treat this page as historical context, not current guidance.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: Could the lawyer offset fees from a case the client refused to close?

A: The committee would not approve charging the fees and expenses of both cases against the proceeds of the single case that closed, treating the question as one of law rather than ethics.

Q: What did the committee suggest the lawyer do instead?

A: Present the matter to the court by a petition for instructions, or ask the court for leave to withdraw and have a lien for fees declared against any later settlement. The committee noted the lawyer could deduct his earned fees from the amounts actually received in the case that closed.

Background and rules framework

The opinion applied former Canon 14 of the Canons of Professional Ethics. The handling of funds in a lawyer's trust account, the lawyer's fees, and any lien are now addressed by Rule 5-1.1 (trust accounts) and Rules 4-1.15 and 4-1.16 of the Rules Regulating The Florida Bar (Model Rules 1.15 and 1.16). The committee treated the cross-case offset as a legal question for the court rather than an ethics question.

Citations and references

Rules of Professional Conduct:

• Canon 14 [Canons of Professional Ethics; see current Rules 5-1.1, 4-1.15, 4-1.16]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-15/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-15-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-15
August 21, 1962
Advisory ethics opinions are not binding.
The Committee declined to approve a lawyer's charging fees and expenses received from one case against the proceeds of another case. Rather, the Committee suggested that the matter be presented to the court by petition for instructions.
Canon: 14
Chairman Holcomb stated the opinion of the committee:
The Florida Bar Committee on Professional Ethics has considered the problem presented by a member where his client, after agreeing to settlement in two personal injury cases and having the same announced in open court, then refused to sign releases in one case. The lawyer received payment in the case in which releases were signed and holds the funds in his trust account.
He desires our approval of his charging his fees and expenses in both cases against the settlement received in the one case. We regret that we cannot give our approval of this procedure. It seems to us that the problem is more one of law than of ethics. We would suggest that the matter be presented to the court by a petition for instructions.
He has clearly earned his fees in the one case and can deduct them from the amounts received. As to the other case, he might present a petition to the court for instructions, or he might ask the court for leave to withdraw as counsel and have a lien for fees declared by the court against any subsequent settlement.