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.