Can a lawyer garnish payments owed to a client who skipped town without paying, in order to collect an unpaid fee reduced to judgment?

Plain-English summary

Opinion E-83-11 addressed an attorney who represented a client (Mr. S) in a business sale and a divorce. After the divorce, Mr. S left Wisconsin without a forwarding address and without paying a $500 fee balance, which the attorney reduced to judgment. The purchaser of Mr. S's business (Mr. R) was paying Mr. S $515 per month, structured for Mr. S's convenience as $400 to the clerk of courts for child support and $115 to the attorney's trust account for disbursement to Mr. S's former wife. The question was whether the attorney may satisfy the judgment through a garnishment action against Mr. R. The committee addressed only the ethical propriety of bringing the action, not its likelihood of success or the underlying legal issues, and assumed the client had not discharged the lawyer, alleged misconduct, or asserted excessive fees or inability to pay.

The committee cited SCR 20.06(6)(g), under which an attorney should be zealous in avoiding controversies over fees and should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client. Assuming the failure to pay constituted gross imposition or fraud, the committee concluded that commencing the garnishment action would not be a per se violation of the Code. Drawing on ABA Informal Opinion 1461, which described gross imposition as present where a client who is financially able deliberately refuses to pay a clearly agreed and due fee, the committee noted that opinion's caution that a lawyer should weigh the right to collect against potential prejudice, and should forgo collection where the client's failure to pay is not deliberate (and so not fraud or gross imposition). Because the facts did not show whether the husband's ability to pay support would be affected or whether the payments were essential to the recipient, the committee concluded the attorney may garnish Mr. R only if the action will not make it impossible for the husband to continue paying the wife and will not deplete the settlement and support payments to the wife's serious and adverse detriment.

Currency note

This opinion was issued in 1983, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code (SCR 20.06(6)(g)). Fee disputes and collection are now addressed under SCR 20:1.5 / Model Rule 1.5 and the general duties to clients. 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: Could a Wisconsin lawyer sue or garnish a client to collect an unpaid fee?

A: Under E-83-11, yes in narrow circumstances. The committee read SCR 20.06(6)(g) to permit suing a client only where necessary to prevent fraud or gross imposition, and treated a deliberate refusal to pay a clearly owed fee as gross imposition.

Q: Was the garnishment automatically proper once the fee was reduced to judgment?

A: No. The committee conditioned it on the action not making it impossible for the client to continue support payments and not depleting the former wife's settlement and support to her serious and adverse detriment.

Q: What is "gross imposition"?

A: Per ABA Informal Opinion 1461, quoted by the committee, it is present when a client who is financially able deliberately refuses to pay a fee that was clearly agreed upon and is due.

Background and rules framework

The opinion interpreted the former Code's fee-controversy provision, SCR 20.06(6)(g), which directed lawyers to avoid fee controversies and to sue a client only where necessary to prevent fraud or gross imposition, informed by ABA Informal Opinion 1461 on retaining liens and gross imposition. Fees and fee disputes now fall under SCR 20:1.5 / Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.06(6)(g) / Model Rule 1.5 (avoiding fee controversies; suing a client only to prevent fraud or gross imposition) (former Code provision)

Other opinions cited:

• ABA Informal Opinion 1461: definition of "gross imposition"; cautions on enforcing collection where it prejudices the client or third parties

See also

• WI Ethics Op. E-85-13: Divorce Fee Collection and Withholding Final Papers
• WI Ethics Op. E-83-15: Blanket Fee for Insurance Defense Cases

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-83-11.pdf