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