OPINION 374
September 1974

ATTORNEY'S FEES It is improper for a lawyer to secure a judgment for legal fees against his client in the same suit for which the client is being represented by the lawyer.

Code of Professional Responsibility: DR 5-101(A), DR 2-110(C)(d)

Facts

A lawyer represents a client in a divorce case where there is no clear understanding on the fee arrangement. Client refuses request of lawyer to pay additional fees but client does not discharge lawyer. Lawyer continues representation of client and during trial he testifies as to services rendered and court decrees that client is to pay a portion of lawyer's fee. Lawyer then prepares the divorce decree which includes a judgment for recovery of his fee against client. Thereafter, lawyer pursues vigorous enforcement remedies against client.

Opinion

Ethical Consideration 2-19 provides:

"As soon as feasible after lawyer has been employed, it is desirable that he reach a clear agreement with his client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee, particularly when it is contingent.

"A lawyer should be mindful that many persons who desire to employ him may have had little or no experience with fee charges of lawyers, and for this reason, he should explain fully to such persons the reasons for the particular fee arrangement he proposes."

A lawyer who continues representation of client when there is a presently existing fee dispute must decide whether such client's conduct "renders it unreasonably difficult for the lawyer to carry out his employment effectively" DR 2-110(C)(1)(d). If he cannot continue such effective representation, the lawyer should withdraw from the employment, as permitted by the Code of Professional Responsibility. However, if the lawyer continues his representation, he must "zealously" protect the client within the bounds of the law. Canon 7. A ruling permitting judgment in favor of the lawyer for his fee and against the client (the correctness of which is assumed for purpose of this opinion) cannot ethically be used by the lawyer to collect his fee. Such action by the lawyer would clearly affect the interest of the client and be to the detriment of the client. Disciplinary Rule 5-101. Ethical Consideration 5-2 provides, in part:

"After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interest of his client."

"A client should rightfully expect that no lawyer will secure a judgment against him in the very litigation in which he has employed the lawyer. To permit otherwise would be destructive of the lawyer-client relationship."

Fee disputes should be resolved, if at all possible, without resort to litigation. Ethical Consideration 2-3 provides:

"A lawyer should be zealous in his effort to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client."

From the recitation of facts furnished this Committee, it has been admitted by the lawyer there was no clear understanding as to the fee arrangement for the representation. That the Court has set the amount of the legal fee or authorized preparation of judgment against the client and in favor of the lawyer, cannot militate against the above ruling. It would be the duty of the lawyer to point out to the Court the conflict of interest and to pursue other permissible courses of action. A vigorous enforcement of the judgment for legal fees compounds the violation.

Texas Family Code 11.18 does not change the above ruling. In the opinion of this Committee, the provisions for attorney's fees to be taxed as costs can only be applicable as against the opposing party. 5 Texas Tech University Law Review 412 (Symposium 1974).