LEO: Fees - Inability to Collect Fees  LE Op. 1089


Fees - Inability to Collect Fees.


June 8, 1988


You advise that your office handled a closing approximately one year ago

and represented both buyer and seller. The closing ran smoothly until the

buyer, when filing this year's tax return, noticed that a credit had not

been given to him in closing. After investigation, you determined that the

credit should have been given. The seller freely admits that the credit

should have been given but refuses to pay. Your firm immediately paid

buyer the amount of the credit and now wishes to proceed against seller to

collect the money. You wish to know whether your firm's prior

representation of the seller precludes your firm from proceeding against

seller to collect the monies owed by sellers.


There is nothing within the Code of Professional Responsibility which

prohibits an attorney from suing a former client for monies owed. However,

the Committee does refer you to DR:5-105(D), which states that a lawyer

who has represented a client in a matter shall not thereafter represent

another person in the same or substantially related matter if the interest

of that person is adverse in any material respect to the interests of the

former client, unless the client consents after disclosure. In this

situation, the Committee believes that because your firm previously

represented the seller in the same matter, it would be improper for your

firm to represent itself in the suit against your former client for the

monies owed unless the client consents after disclosure. Should the client

not consent, your firm will be required to retain the services of another

firm in this matter.


Committee Opinion June 8, 1988