You’ve done a great job for your client and it’s refused to pay the balance of the attorneys fees owed to your firm. You’ve worked very hard and deserve to be paid. But even if you were able to get a judgment for your unpaid fees, would it be worth the additional investment to obtain the judgment? If you decided to self-represent in such a collection action, would you be able to tack on the value of the additional your firm’s time to the ultimate judgment?
Below are how a number of jurisdictions shake out:
Yes
- Georgia – Hal Wright, Esq., P.C. v. Gentemann, 327 Ga. App. 650 (2014)(When a retainer agreement so provides, an award of attorney fees is available with respect to a firm or attorney’s self-representation in an action to collect fees owed by a client).
Probably Yes
- Florida – Gossett & Gossett, P.A. v. Mervolion, 941 So. 2d 1207 (Fla. Dist. Ct. App. 2006)
No
- New Jersey – Gruber & Colabella, P.A. v. Erickson, 345 N.J. Super. 248 (Law. Div. 2001)
- Connecticut – I. David Marder & Assocs., LLC v. Vaiciulis, 2008 WL 5274445 (Conn. Super. Ct. Dec. 3, 2008)
- California – Sands & Assocs. v. Juknavorian, 209 Cal. App. 4th 1269 (2012)(even with a prevailing party clause in retainer agreement).
- Utah – Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996)
Maybe
- New York – Ferst v. Abraham, 140 A.D.3d 581 (N.Y. App. Div. 2016)(if provision in retainer agreement is not reciprocal, it is unenforceable).
- Illinois – Lustig v. Horn , 315 Ill.App.3d 319 (2000) says no. But there, the retainer agreement was executed after the attorney-client relationship had already begun. A later decision backed off somewhat, holding that such a provision, if executed prior to establishment of attorney-client relationship, is not per se improper, at least to the extent that the lawyer is represented by outside counsel. Timothy Whelan Law Assocs., Ltd. v. Kruppe, 409 Ill. App. 3d 359 (2011).
- D.C. – Ethics Opinion 310 (discussing Lustig): Nothing per se unreasonable about such a condition in a fee agreement, where client has known from the beginning that in the event the client was held liable to the lawyer for unpaid fees the cost of collection would be a part of the damages.
