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I want to hire a NEW ATTORNEY with money my husband was ordered to pay my last lawyer.

Q. The court ordered my husband to pay my family law attorney $10,000 for legal fees at $500/month. He has made 2 or 3 payments. The court order says the fees are to be paid directly to her. I want to fire her and hire a better attorney. Can this money be used to pay that attorney instead?

Judy, Vista, CA


Family Code section 272 provides, in dealing with court orders that one party pay the other money on account of their legal fees, "(c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the [prior]attorney may enforce the order only if it appears of record that the attorney has given to the former or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10 day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion."

So, in order for your former attorney to be entitled to enforce the fee order she has to have given you notice which is unlikely since few attorneys know about this rule. Effectively, you probably need to demand she give the notice, and then file or have a motion filed within the 10 days to tell the court you cannot continue your case if those fees are not used for your new attorney.

However, judges seem reluctant to deprive the former attorney of the fees they already claim to have earned (as opposed to future unearned fees), so this may not be as easy as it sounds. And, if you want to trash your former attorney in order to justify your request it may bite you instead. If your former attorney is respected and has a good reputation, and is well-known to the Court your chances are slim. Your best argument may be your financial circumstances and the public policy that obviously lies behind subsection (c) - ensuring that parties have counsel in family law and dissolution proceedings.

Also, this statute is a bit challenging to interpet. It speaks in terms of enforcing a fee order which sounds like a situation where an attorney has received, say, a $10,000 order but hasn't been collecting it in monthly installments. In your situation, your new attorney might make a written demand of your husband that he cease the installments to the earlier attorney and pay the new attorney instead (assuming your new attorney is willing to make an enemy of the former lawyer). That also would trigger the 10 day rule.

We written extensively about attorney fees in divorce and family law cases!

Author: Thurman W. Arnold


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