LEO: Fees - Trust Accounts: Former Attorney's LE Op. 1280

 

Fees - Trust Accounts: Former Attorney's Fees Which the Client

Disputes.

 

September 21, 1989

 

You indicate that, prior to retaining you as counsel, your client and her

husband had retained another attorney. After they discharged the first

attorney and retained you, the first attorney notified you of a lien for $

375 which he claimed was the value of his services. As far as you know, he

never notified the defendant's insurance company of his lien, and the

settlement check was made payable to you and your client only. You have

now disbursed the proceeds to your client while withholding $375 in your

trust account pending this Committee's determination of the appropriate

conduct under your professional obligations.

 

You are uncertain of your duty to the attorney, if any, and how you can

reconcile that with your duty to represent your client by avoiding having

her pay debts for which she may not be liable. You have requested that the

Committee opine on whether you are obligated to either notify the attorney

that the proceeds have been received and/or pay the attorney, and, if so,

what sum should be paid to the attorney.

 

The applicable Disciplinary Rules are DR:9-102(A)(2), which provides

that the portion of funds in a lawyer's trust account which may belong in

part to the lawyer and which are in dispute shall not be withdrawn until

the dispute is finally resolved, and DR:9-102(B)(4) which requires that

a lawyer shall promptly pay or deliver to the client or another as

requested by such person the funds, securities, or other properties in the

possession of the lawyer which such person is entitled to receive. (

emphasis added)

 

The Committee is of the opinion that by retaining the funds in your trust

account until the dispute is resolved, you have met the ethical

obligation. The questions you raise as to the possibly improper notice and

the rightful owner of those funds are legal issues dealing with the

interpretation and application of 54.1-3932 of the Code of Virginia

which addresses an attorney's lien for fees. The resolution of that

question is beyond the purview of this Committee and properly rests with a

finder of fact.

 

Committee Opinion September 21, 1989