Ethics Opinion 251

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #251 – 05/24/1972 (31-72)

Topic: Receipt of fee in divorce action in addition to that allowed by Court
Digest: Provided that by its order the Court has not determined the reasonable value of his services, a wife’s attorney may, after full disclosure, receive a fee from the wife in addition to that paid by the husband if the aggregate fees are not excessive
Code: DR 2-106(A); EC 2-17

QUESTION

In a matrimonial action is it proper for the wife’s attorney to negotiate for, and receive, a fee from the wife additional to that allowed by the Court and paid by the husband to the wife’s attorney on an application for temporary alimony and counsel fees?

OPINION

It is not unethical for the attorney to accept such additional fee, provided that the client is fully informed as to the fee which the attorney has already received by direction of the Court, and further provided that the aggregate of the fees is not excessive or unreasonable. N.Y. City 23 (1925).However, where a court fixes a fee as reasonable it is improper to make an additional charge. ABA Inf. 276 (1960); ABA Inf. 1013 (1968). This rule applies only in the event the Court intended by its order to determine what was a reasonable fee for the services performed. ABA Inf. 1013 (1968).In fixing counsel fees in a matrimonial action, a court does not necessarily determine that such fees are reasonable compensation to the wife’s attorney. Other factors, such as the husband’s resources and ability to pay, are taken into consideration in fixing counsel fees.Since on an application for temporary alimony and counsel fees the Court does not purport to fix the reasonable value of the services, the attorney is free to negotiate an additional fee from the wife provided that she is fully informed of the Court’s order and that the aggregate fee is not excessive. DR 2-106(A); EC 2-17.

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