May a lawyer file an affidavit in the county public records stating that former clients failed to pay attorney's fees?

Plain-English summary

A lawyer was owed a small and admittedly reasonable sum for past services by clients who were able to pay. He asked whether he could properly file an affidavit in the public records of a county in which the clients owned real property. The proposed affidavit would ask any attorney or title examiner who encountered it in connection with a sale to remind the clients to pay the bill, would state that it was not intended to create any lien or encumbrance, and would state that the lawyer did not intend ever to seek collection by legal process. The affidavit also stated that it might shame the clients into paying, and that this was as it should be.

The committee concluded that the affidavit should not be filed. It applied EC 1-5, which provides that a lawyer should be temperate and dignified, and EC 9-2, which provides that a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or the legal profession.

Currency note

This opinion was issued in 1974, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, including the Canon 9 "appearance of impropriety" standard that was not carried forward into the current rules. Treat this page as historical context, not current guidance. Verify against the current Rules Regulating The Florida Bar before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer record the affidavit because it disclaimed any lien and any lawsuit?

A: No. The committee concluded the affidavit should not be filed despite those disclaimers.

Q: What did the committee identify as the problem with the affidavit?

A: The committee applied EC 1-5 (a lawyer should be temperate and dignified) and EC 9-2 (a lawyer should guard against conduct tending to diminish public confidence in the profession), and the affidavit stated its own aim of shaming the clients into paying.

Background and rules framework

The opinion applied two Ethical Considerations of the former Code of Professional Responsibility: EC 1-5, on maintaining a temperate and dignified manner, and EC 9-2, which sat under Canon 9 and addressed avoiding even otherwise proper conduct that tends to diminish public confidence in the legal system or profession. The Canon 9 "appearance of impropriety" framework was not retained when the Model Rules and the current Rules Regulating The Florida Bar replaced the Code, so there is no direct one-to-one successor rule; the nearest current provision addressing lawyer misconduct generally is Rule 4-8.4.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR EC 1-5 (temperate and dignified conduct)
• CPR EC 9-2 (avoiding conduct that diminishes public confidence)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-30/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-30-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-30
October 23, 1974
Advisory ethics opinions are not binding.
An attorney may not file an affidavit in the public records of a county in which former clients own real property stating that the clients have failed to pay attorney's fees.
CPR: EC 1-5; EC 9-2
Vice Chairman Daniels stated the opinion of the committee:
A lawyer owed a small and admittedly reasonable sum for past services by clients able to pay same asks if he may properly file an affidavit in the public records of a county in which the clients own real property. The proposed affidavit would state, among other things:

4. I would appreciate it if any attorney or any other title examiner to whose attention this affidavit may come in connection with a sale of this property, would ask Mr. and Mrs. X to please pay this bill.
5. This affidavit is not intended to create any lien or encumbrance on the land described above or on the proceeds of any sale thereof. As a matter of fact we do not intend ever to seek collection of this debt by any form of legal process. Therefore, kindly advise Mr. and Mrs. X any payment they may make to us will be strictly voluntary on their part, and not under any compulsion whatsoever on account of this affidavit.
6. Of course, this affidavit may well shame them into paying. That is as it should be, and I cannot help it.
   Further affiant sayeth not.
   EC 1-5 provides that a lawyer "should be temperate and dignified." In addition, EC 9-2 states that ". . . a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or the legal profession. . . ." For these and other reasons, the proposed affidavit should not be filed.