After a client fires her lawyer, can the lawyer still collect a court-approved attorney's fee directly from the opposing party?

Plain-English summary

In a domestic case, a Family Court order incorporated an agreement requiring the marital home to be sold and the husband to pay the wife a specified sum toward the attorney's fees she had incurred. The wife then fired her attorney and retained new counsel, received a bill from the former attorney before the home sold, and filed a petition with the Resolution of Fee Disputes Board of the S.C. Bar. While that petition was pending, the former attorney sought to require the husband to pay the court-approved fee directly to the former attorney's firm. The questions were whether it was ethical for the former attorney to try to collect the fee from the husband while the fee dispute was pending, and to file an action against the husband for payment.

The committee relied on Rule 1.2, under which a lawyer must abide by the client's decisions about the objectives of representation. Because the attorney-client relationship ended when the wife fired the attorney, it could be inferred that she did not want the attorney to take further action on her behalf, so under Rule 1.2 the attorney must abide by that decision and no longer represents her. And because the attorney's fee award is to the wife and not to the attorney, the attorney may not take any action to collect the fee directly from the husband, regardless of the pending petition the wife filed with the Resolution of Fee Disputes Board.

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a discharged lawyer keep enforcing a fee provision of a court order for the former client?

A: The committee said no. Once the client fired the lawyer, under Rule 1.2 the lawyer must abide by her decision and may take no further action on her behalf to enforce the fee provisions.

Q: Can the lawyer collect the court-approved fee directly from the opposing party?

A: The committee said no, because the fee award belongs to the client, not the lawyer, so the lawyer may not collect it directly from the husband.

Q: Does the client's pending fee dispute change the answer?

A: No. The committee said the lawyer may not collect from the opposing party regardless of the petition the client filed with the Resolution of Fee Disputes Board.

Background and rules framework

The opinion applied Rule 1.2 (scope of representation and a lawyer's duty to abide by the client's decisions), which corresponds to Model Rule 1.2. The analysis turned on the discharge ending the representation and on the fee award belonging to the client rather than the lawyer.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.2(a) / Model Rule 1.2: a lawyer shall abide by the client's decisions concerning the objectives of the representation.

See also

• SC Bar Ethics Op. 92-15: Refunding a Reversed Attorney's Fee Award
• SC Bar Ethics Op. 92-37: Who Pays to Copy a Discharged Client's File

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-11/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-11

Husband and Wife entered into agreement in conjunction with domestic litigation. The agreement is approved by the Family Court and incorporated into an order. The relevant portion of the agreement provided that the marital home be sold. Upon the sale, the husband is to satisfy certain financial obligations to wife and he is to pay her a specified sum as his contribution toward attorney's fees wife had incurred in conjunction with the litigation.

Thereafter, wife "fires" her attorney and retains other counsel. Wife then receives a bill from her former attorney prior to the sale of the marital home. Thereafter, wife files a petition with the Resolution of Fee Disputes Board of the S.C. Bar. While her petition is pending, her former attorney seeks to require husband to pay the Court approved fee directly to his/her law firm.

Questions:
(1) Is it ethically permissible for former attorney of Wife to attempt to collect the fee from husband while wife's fee dispute is pending?
(2) Is it ethically permissible for former attorney of wife to file action against husband for payment of wife's attorney's fees?

(Assume: (1) There is no legal distinction between Court ordered attorney's fees when the issue is contested and Court approved attorney's fees when the issue is uncontested. (2) The language of the Louthian case is not inconsistent with the language of 20-3-125 to the extent that they both indicate that an attorney's fee award is to the party, not to the attorney).

Summary:
Because there no longer exists an attorney-client relationship between wife and attorney, attorney may take no further action on behalf of wife to enforce the attorney's fee provisions of the order.

Opinion:
Rule 1.2 provides in part: (a) A lawyer shall abide by a client's decision concerning the objectives of representation...., and shall consult with the client as to the means by which they are pursued. Under this fact situation the attorney-client relationship was terminated when wife "fired" attorney. It may be inferred, therefore, that wife does not wish attorney to take any further action on her behalf. Consequently, under Rule 1.2, the attorney must abide by her decision in that the attorney no longer represents her.

Since the attorney's fee award is to wife and not to attorney, attorney may not take any action to collect the fee directly from husband regardless of the pending petition filed by wife with the Resolution of Fee Disputes Board for the S.C. Bar.