My divorce client stopped paying my hourly fees. When can I sue the client for what I am owed?

Plain-English summary

The inquiring attorney represented a client in a divorce matter on an hourly basis. The client agreed to pay a retainer but could pay only a certain sum per week and made only four partial payments. The attorney prepared the case up to and including the final hearing, at which a decision was issued pending entry of final judgment. The client has not responded to numerous requests for payment, and the attorney asked if and when suit for payment of services may be filed.

The panel said the inquiry is governed by Rule 1.16 ("Declining or Terminating Representation"). It quoted Rule 1.16(d), under which, on termination, a lawyer shall take reasonably practicable steps to protect the client's interests, such as giving reasonable notice, allowing time for other counsel, surrendering papers and property, and refunding any unearned advance fee. The panel stated that the attorney must choose one of two options: the attorney may file the final judgment with the court as a reasonable step toward protecting the client's interest under Rule 1.16(d), or, in the alternative, may petition the court to withdraw under Rule 1.16(b)(4), which permits withdrawal where the client fails substantially to fulfill an obligation regarding the lawyer's services after reasonable warning that the lawyer will withdraw.

The panel concluded that once the representation has been concluded, either by conclusion of the litigation or by withdrawal, the attorney may bring an action for fees; but a suit against the client is not proper unless or until the representation is concluded.

In practice

Under this opinion, an attorney holding an unpaid balance in an ongoing divorce case cannot proceed directly to a fee suit while the representation continues. The opinion frames two Rule 1.16 paths to conclude the representation first: completing the matter by filing the final judgment as a step protecting the client under Rule 1.16(d), or petitioning to withdraw for the client's substantial failure to meet a fee obligation after warning under Rule 1.16(b)(4). Only after the representation is concluded does the opinion treat a fee action as proper.

Common questions

Q: Can I sue my client for unpaid fees while the divorce case is still pending?

A: Per the opinion, no; the panel does not believe a suit against the client is proper unless or until the representation is concluded.

Q: What are my options to conclude the representation?

A: Per the opinion, the attorney may file the final judgment with the court as a step protecting the client's interest under Rule 1.16(d), or petition the court to withdraw under Rule 1.16(b)(4) for the client's substantial failure to fulfill a fee obligation after reasonable warning.

Q: After the case ends, may I then bring a fee action?

A: Per the opinion, yes; once the representation has been concluded by conclusion of the litigation or by withdrawal, the attorney may bring an action for fees.

Background and rules framework

The opinion applies Rhode Island Rule 1.16 (declining or terminating representation), corresponding to Model Rule 1.16. The panel read Rule 1.16(d) as requiring steps to protect the client's interests upon termination and Rule 1.16(b)(4) as permitting withdrawal where the client substantially fails to fulfill a fee obligation after reasonable warning, and treated conclusion of the representation as the precondition to a fee suit.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• RI RPC 1.16(d), 1.16(b)(4)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-42: Mixed Contingent and Fixed Fee in the Same Matter
• RI EAP Op. 92-40: Attorney-Trustee and an Elderly Client of Doubtful Capacity

Currency note

This opinion was issued in 1992 (Opinion 92-43), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.16 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.16 (declining or terminating representation). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-43.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION #92-43, REQUEST #266
Issued July 23, 1992

An attorney seeks Panel advice regarding the following circumstances. The attorney represented a client in a divorce matter on an hourly basis. The client agreed to pay a retainer but could only pay a certain sum per week. The client made only four partial payments. The attorney prepared the case up to and including the final hearing at which time a decision pending entry of final judgment was issued. The client has not responded to numerous requests for payment. The attorney asks if and when the suit for payment of services may be filed.

The Panel agrees that this inquiry is governed by Rule 1.16 "Declining or Terminating Representation." Rule 1.16(d) states:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

The Panel believes that the attorney must choose one of two options. The attorney may file the final judgment with the court as a reasonable step toward protecting the client's interest in accordance with Rule 1.16(d). In the alternative the attorney may also choose to petition the court to withdraw from the representation pursuant to Rule 1.16(b)(4) which states that:

A lawyer may withdraw if withdrawal can be accomplished without material adverse effect on the interest of the client, or if:

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

Once the representation has been concluded either by conclusion of the litigation or withdrawal, the attorney may bring an action for fees. However, the Panel does not believe that a suit against the client is proper unless or until the representation is concluded.