ETHICS OPINION 638-1974 COUNSEL FEES

NUMBER 638

QUESTION.

 

The attorney for the wife in a pending divorce action was allowed counsel fees in connection with the granting of temporary alimony. The application for the allowance stated that in addition to the matrimonial relief the complaint sought judgment awarding the wife monies withdrawn by the husband from a joint bank account. The order for counsel fee made no reference to this. The attorney asks:

 

1. Does the allowance of counsel fees preclude him from charging the wife an additional fee for services relative to the bank account?

 

2. If the wife agrees to pay for such services, should the attorney report that to the court on any future application for counsel fees?

 

ANSWER.

 

The question of whether a lawyer may be allowed counsel fees for the non- marital aspects of a matrimonial litigation is a matter of law on which this Committee does not pass. However, Lambert v. Lambert, 356 N.Y.S. 2d, 94 (App. Div. 2nd Dept. 1974) clearly holds that the court has no power to grant counsel fees for services applicable to non-matrimonial matters. Assuming this to be the law, the inquiring lawyer is free to charge the client separately for his services in connection with such matters.

 

As a matter of ethics, when the lawyer makes application in the matrimonial proceeding for further counsel fees, he should disclose to the court his fee arrangements for the non-matrimonial matter because the allowance of fees is discretionary and in making its decision the court should have before it all of the relevant surrounding circumstances.

 

November 18, 1974.