OPINION 84-4

September 15, 1984

An attorney who is a shareholder in an incorporated law firm may represent the firm at trial
in a suit against a former client, for attorney's fees even though other shareholders will be
called as witnesses on behalf of the firm.

CPR: DR 5-101; DR 5-102

Vice Chairman Proctor stated the opinion of the committee:

An attorney who is a shareholder in an incorporated law firm inquires whether she may
ethically represent her law firm as trial counsel in a suit for collection of attorney's fees
against a former corporate client and certain individuals who are shareholders in that
corporation, in which suit three other shareholders in the inquiring attorney's firm will be
witnesses at trial. An outside witness will be the expert witness on the value of the legal
services rendered, and the three fellow shareholders of the inquiring attorney will testify to
the services provided to the corporate defendant and the individual defendants, and how
those services benefited the individual defendants. The inquiring attorney asserts that the
only contested issue in the action is whether the legal services rendered benefited the
individual defendants.

The Committee has concluded that the facts and circumstances involved in this inquiry are
such that the inquiring attorney can ethically represent her law firm in an action against a
former client of the law firm for the collection of attorney's fees.

DR 5-101 provides that a lawyer refuse employment in contemplated or pending litigation if

he or she knows that he or she or a lawyer in his or her firm ought to be called as a witness.
Likewise, DR 5-102(A) requires that a lawyer and his or her firm withdraw from conducting
a trial when it is obvious that he or she or a member of his or her law firm will be called as a
witness on behalf of a client . It appears that a primary basis or rationale for this
longstanding rule, which is commonly referred to as the "advocate-witness rule," is to
preclude a perception by the public that a lawyer in his capacity as a witness is distorting
the truth for the sake of his client. There is no dearth of judicial and bar association
committee opinions and discussions pertaining to the advocate-witness rule and its
application to a multiplicity of situations. We do not, however, feel that the rule is applicable
in the instant situation.

If the inquiring attorney was a sole practitioner, we believe that she could represent herself
in a suit for collection of attorney's fees owed to her. In such a case we do not think that
she would be accepting "employment" as we think that term should be interpreted under DR
5-101(B), nor do we think such a situation would involve a "client" as we think that term
should be interpreted under DR 5-102(A). We likewise believe that this construction,
interpretation or rationale can and should be applied or utilized to obtain the same
determination or result in situations involving a law partnership or an incorporated law
practice. The advocate partner or shareholder should, for purposes of interpreting the
strictures of DR 5-101 and DR 5-102, be construed to be representing his or her own
interests, and not the interest of an independent "client" as that term is traditionally
construed or used in relation to those provisions.

In conclusion, the Committee is of the opinion that neither professional ethics nor the ends
of justice prohibit or preclude a law firm from representing itself by or through one of its
members or shareholders in an action for collection of attorney's fees against a former
client, notwithstanding that some members or shareholders of the firm will be called as
witnesses in the action.

OPINION 88-1
(July 15, 1988)
An attorney whose client has reneged on a fee agreement should not take action adverse to
the client to enforce the agreement until the representation has been concluded, whether by
withdrawal or by conclusion of the client's matter. If the client's breach of the fee
agreement has made it impossible for the attorney to fulfill his obligation to place the
client's interests ahead of his own, the attorney should seek to withdraw. An attorney
should file suit against a client for fees only as a last resort.

RPC: 4-1.7(b), 4-1.16(b)(4), 4-1.16(c), 4-1.16(d)

Case: The Florida Bar v. Fields , 482 So.2d 1354 (Fla. 1986)

The inquiring attorney is currently representing a client against her former husband in a
matter concerning, among other things, a motion for continuing writ of garnishment. At the
time this representation was undertaken, an hourly fee was agreed upon. Client and
attorney further agreed that, as the payments were received pursuant to the writ of
garnishment, one half of each payment would go to the client and the other half would go to
the attorney until his fees were paid in full. Additionally, it was agreed that if the court
awarded attorney's fees to be paid by the former husband, any such fees collected would be
credited against the fees paid or owed by the inquirer's client. However, on the day of the
final hearing regarding the motion for continuing writ of garnishment, the client refused to
sign an affidavit reflecting this agreement.

When the court granted the motion, the ex-husband's employer was ordered to send the
garnishment checks to the attorney's trust account. The employer is instead sending the
checks directly to the attorney's client. Further, the client is not complying with the
agreement to pay the attorney one-half of each payment until the attorney's fees owed are
fully paid. The hearing on the inquiring attorney's motion for attorney's fees and costs is set
for September.

The inquiring attorney requests an opinion as to the ethically proper course of conduct to
follow in light of the above facts. Specifically, he asks whether he should file a motion for
contempt against the ex-husband's employer for sending the payments directly to the
attorney's client rather than to his trust account as required by the court's order. He also
asks whether he should withdraw from the representation and sue the client for the unpaid
fees, or whether he should delay action of this type until after the September hearing on
attorney's fees.

The attorney may not allow his personal interests to interfere with his ability to adequately
represent his client. Furthermore, he may not take any action that might be contrary to his
client's interests without her consent. Rule 4-1.7(b), Rules Regulating The Florida Bar.
Accordingly, it would appear that the attorney should not file a motion to hold the employer
in contempt. The client apparently is receiving the payments, so filing the motion would not
advance the client's interests; in fact, it might be contrary to the client's interests if the
attorney billed her for filing the motion. Of course, the motion could properly be filed with
the client's consent.

Similarly, the attorney should not sue the client for fees while he is representing her.

The client's failure to fulfill her financial obligations to the attorney can furnish grounds for
the attorney to withdraw from the representation after notifying his client of his intent to do
so if the client fails to satisfy her obligations:

Except as stated in paragraph (c), a lawyer may withdraw from representing a client if
withdrawal can be accomplished without material adverse effect on the interests of the
client, or if:

(4) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's
services and has been given reasonable warning that the lawyer will withdraw unless the
obligation is fulfilled[.]

Rule 4-1.16(b)(4). In the situation presented, the inquiring attorney may remain as counsel
for his client until after the attorney's fees hearing if his personal interests will not adversely
affect the representation. He could withdraw following the hearing if the client's financial
obligations had not been satisfied.

However, if the client's failure to comply with the fee agreement has adversely affected the
attorney's ability to zealously represent the client, then this conflict of interests requires
that the attorney promptly attempt to withdraw. Of course, if a motion to withdraw is
denied, the attorney is ethically obligated to "continue representation notwithstanding good
cause for terminating the representation." Rule 4-1.16(c). Furthermore, upon withdrawal an
attorney must take steps to avoid foreseeable prejudice to the client as required by Rule 4-
1.16(d).

There are situations in which suing a former client for unpaid fees may be necessary as a
"last resort." Before instituting suit, the attorney should attempt to resolve the matter
amicably. See The Florida Bar v. Fields , 482 So.2d 1354 (Fla. 1986). But if the inquiring
attorney is put in such a situation, he is not ethically precluded from suing the client for the
unpaid fee.