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OBA Ethics Counsel

Ethics Opinion No. 234

Adopted November 11, 1965

INQUIRY

The Committee has been advised that some attorneys are following the practice of bringing clients before the Court for a default divorce, obtaining the adjudication, but then refusing to have a formal decree entered or to furnish the decree to the client until the attorney is paid his fee. The opinion of the Committee has been asked as to whether this is proper conduct on the part of such attorneys.

Divorce--Having obtained a divorce for his client, it is improper for an attorney to refuse to file the decree or to refuse to furnish the decree to client until the attorney has been paid his fee.

Fees--Attorney's duty to protect interests of his client must not be subordinated to client's obligation to pay for the attorney's services.

OPINION

In the opinion of the Committee, such action is professionally improper. The determination of causes and the judgments and decrees based thereon are peculiarly within the province of the Court. In the preparation and filing of the formal decree an attorney acts not only on behalf of his client but also as an officer of the Court.

The conduct described constitutes an unwarranted interposition of the attorney between the judicial process and the rights of the litigants for the purpose of serving the ends of the attorney, and is unethical.

Having represented the client and obtained the adjudication the attorney's duty to his client under Canon 11 and his duty to the Court under Canon 22 require him promptly to complete those steps necessary to formalize the action of the Court.

The duty of the attorney to protect his client's interest must not be subordinated to the client's obligation to pay for the attorney's services. See Opinion 364, Committee on Professional Ethics of the Association of the Bar of the City of New York and Opinion 158, Committee on Professional Ethics, New York County Lawyers' Association. See also Drinker, Legal Ethics, page 93.