State Bar of Arizona Ethics Opinions
86-12: Fees; Scope of Representation; Meritorious Claims
Pursuant to A.R.S. § 25-315, a lawyer may obtain a lien on a community funds as security for fees and costs, unless and until an Arizona Appellate Court rules otherwise.
Opinion No. 86-12
October 21, 1986
The Board of Governors of the State Bar of Arizona has requested that our committee determine:
“Whether a lawyer representing a respondent in a dissolution proceeding may ethically obtain a lien on community funds as security for fees and costs after the issuance of the Preliminary Injunction pursuant to A.R.S. < 25-315
A.R.S. < 25-325 requires that, at the time of the filing of a Petition for Dissolution, a Preliminary Injunction issue directed to both parties. This automatic injunction must provide in pertinent part:
“a. That both parties are enjoined from transferring, encumbering, concealing, selling or otherwise disposing of any of the joint, common or community property of the parties except in the usual course of business or for the necessities of life, without the written consent of the parties or the permission of the court.”
The Preliminary Injunction is then issued by the Clerk of the Superior Court at the time as the dissolution action is filed. A copy of a forth injunction is attached.
It has the full force, and effect of any other Order of the Superior Court. The injunction also carries the following warning:
“This is an official court order. If you disobey this order the court may find you in contempt of court. You may also be arrested and prosecuted for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.”
After the issuance of the Preliminary Injunction pursuant to A.R.S. < 25-315, may a lawyer representing a respondent ethically obtain a lien on community funds as security for fees and costs?
ETHICAL RULES INVOLVED
ER 1.2. Scope of Representation
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
ER 1.5. Fees
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof;
ER 3.1. Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extensions modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
The instant inquiry presents an underlying legal question. If the Preliminary Injunction prohibits attorneys from taking an initial fee from community property funds or taking a lien against community property to secure a fee, such conduct would be illegal and therefore unethical. No appellate court, however, has made that determination.
Ordinarily this committee would not attempt to resolve an ethical question that is so dependent upon resolving a legal question. In this case, however, the Board of Governors has asked the committee to address the specific ethical question and the committee will provide its opinion.
Since the appellate courts have not decided whether such conduct is legally prohibited or not, the question remains open. This leaves ample room for practitioners to argue in, good faith that payment of or a lien in regard to attorney’s fees was not meant to be included in the prohibition in the Injunction required by A.R.S. < 25-315. Under ER 3.1, as long as an attorneys’ position in regard to the injunction and the lien for attorneys’ fees is “not frivolous" and “in good faith" there is no ethical impropriety.
Therefore, unless and until an appellate court rules that an injunction issued pursuant to A.R.S. < 25-315 does prohibit a party from paying attorneys' fees or taking a lien against community property to secure attorneys’ fee, it is the opinion of this committee that, in accepting such a payment or lien, an attorney is not in violation of the rules of Professional Conduct.
This is an official court order. If you disobey this order the court may find you in contempt of court. You may also be arrested and prosecuted for the crime of interfering with judicial proceedings and any crime you may have committed in disobeying this order.
You or your spouse may file a certified copy of this order with your local law enforcement agency. A certified copy may be obtained from the clerk of the court that issued this order. If you are the person that brought this action, you must also file evidence with the law enforcement agency that this order was served on your spouse.
This court order is effective until a final decree of disillusion or legal separation is filed or the action is dismissed.
The office of the ________________________ County Sheriff is the preferable local law enforcement agency in which to file the copy of the order.
The person filing this order with the local law enforcement agency shaIl also file any subsequent changes or modifications with that agency.
SIGNED AND SEALED this date: ____________________
ARIZONA SUPERIOR COURT, County of
In re the Marriage of
CIVIL ACTION NO:
PRELIMINARY INJUNCTION AGAINST
BOTH PETITIONER AND RESPONDENT
(Dissolution – Separation)
IMPORTANT - READ THIS ORDER IMMEDIATELY
Pursuant to Order of the Presiding Judge of the Arizona Superior Court, County of __________ in accordance with ARS £5 25-315(A), as amended 1977 - IT· IS ORDERED that during the pendency of this action:
1. The above named Petitioner and Respondent are enjoined from and shall not:
A. Transfer, encumber, conceal, sell or otherwise dispose of the joint, common or community property of the parties except in the usual course of business or for the necessities of life, without the written consent of both parties or the permission of the Court.
B. Molest, harass, disturb the peace of, or commit an assault or battery on the other party or, any natural or adopted child of the party’s.
C. Remove any natural or adopted child of the parties presently residing in Arizona from the State without the prior written consent of both parties or the permission of the Court
2. This injunction is effective against both •parties to this action. It shall be effective against Petitioner upon filing of a Petition for Dissolution or Separation. It shall be effective against Respondent.
Upon being served with, or accepting service of, a copy of this Injunction upon you.
3. This injunction has the same force and effect of an Order of the Superior Court signed by a Judge and is enforceable by all remedies made available by law, including contempt of Court.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1986