Can a divorce lawyer agree to withhold filing the final papers until the client pays the fee, and what ethical options exist for getting paid short of suing the client?

Plain-English summary

Opinion E-85-13 addressed fee collection in divorce cases. On the first question, the committee concluded it would be ethically impermissible for an attorney to enter an agreement with a divorce client stipulating that the attorney would not file the final divorce papers with the court until the fees were paid (citing former SCR 20.35(1)(b) and SCR 40.13). However, the committee concluded that, with disclosure to the client of the potential consequences, the lawyer and client may acknowledge in their agreement that the lawyer may seek the court's permission to withdraw if the clear terms of the fee arrangement are breached or if other good cause exists. It noted that section 805.17(2), Wis. Stats., may impose a time limitation on filing final documents.

On the second question, ethical alternatives to suing the client, the committee referred to several authorities (including Disciplinary Proceedings Against Kinast, State Bar Ethics Opinion E-80-8, and ABA Informal Op. 1461) and paraphrased them. At the inception of the relationship, the lawyer should clarify in writing the estimated total fees and costs (or the basis for computing them), the manner and timing of payment, and the client's representations about capacity to pay. If a client able to pay deliberately disregards the written fee agreement, the lawyer's options include completing the representation and then pursuing legal remedies, seeking an award of attorney's fees in the divorce action itself, or seeking leave of court to withdraw and a separate judgment for fees and disbursements.

Currency note

This opinion was issued in 1985, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The fee rules are now found in SCR 20:1.5 / Model Rule 1.5 and the grounds and procedure for withdrawal in SCR 20:1.16 / Model Rule 1.16. 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 Treat this page as historical context, not current guidance.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 divorce lawyer refuse to file the final papers until the client pays?

A: The committee concluded such an agreement is ethically impermissible.

Q: Can the fee agreement say the lawyer may withdraw if the client does not pay?

A: The committee concluded yes, with disclosure of the potential consequences, the agreement may acknowledge that the lawyer may seek the court's permission to withdraw if the clear terms are breached or for other good cause.

Q: What collection options did the committee identify short of suing the client?

A: The committee pointed to clarifying fees in writing at the outset and, on a deliberate breach by a client able to pay, completing the work then pursuing legal remedies, seeking fees in the divorce action itself, or seeking leave to withdraw with a separate judgment for fees.

Background and rules framework

The opinion interpreted the former Code's fee and withdrawal provisions (SCR 20.35(1)(b) on fees and SCR 20.16 on withdrawal), as applied to divorce practice, together with statutory provisions on filing and fee awards. Those concerns are now governed by SCR 20:1.5 / Model Rule 1.5 (fees) and SCR 20:1.16 / Model Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.35(1)(b) / Model Rule 1.5 (fees) (former Code provision)
• Wis. SCR 20.16 / Model Rule 1.16 (withdrawal) (former Code provision)

Statutes:

• Wis. Stat. section 805.17(2) (time limitation on filing final documents)
• Wis. Stat. section 767.262 (award of attorney's fees in divorce; cited as 767.262)
• Wis. Stat. section 767.23(3) (separate judgment for fees)

Cases:

• Disciplinary Proceedings Against Kinast, 121 Wis. 2d 25, 357 N.W.2d 282 (1984)

Other opinions cited:

• Wisconsin State Bar Ethics Opinion E-80-8
• ABA Committee on Ethics and Professional Responsibility, Informal Op. 1461 (1980)

See also

• WI Ethics Op. E-95-4: Self-Help in Enforcing Fee Agreements
• WI Ethics Op. E-86-9: Retainers and Advances in Trust Accounts
• WI Ethics Op. E-09-03: Communicating Fees and Expenses to Clients

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-85-13.pdf