Enforcement Proceedings and Attorney Retainer

Whenever there are proceedings brought to enforce child support or spousal support awards, attorneys can issue executions against assets owned by responsible party. In M.M. v. T.M., 2015 N.Y. Slip.Op. 25294 (Sup. Ct. Monroe Co. 2015), the trial court held that a retainer paid to an attorney to defend an enforcement proceeding can be subject to an execution by the opposing party.

In M.M., the trial court had to determine whether the execution issued pursuant to the judgment for unpaid spousal maintenance can be used to restrain a retainer held in attorney’s trust account, that was paid to defend the enforcement proceeding. Specifically, defendant-husband objected to the execution stating that ‘to permit the turnover would cause the husband “extreme hardship.'” Further, defendant argued that he held no interest in the escrowed funds and that by virtue of commencing representation, the defendant’s attorney acquired an interest superior to that of the plaintiff.

In addressing these arguments, the court held that the evidence in this case, based on the affidavit from the defendant-husband, was insufficient to meet the extreme hardship test. There was no demonstrated evidence of any “extreme hardship” and no evidence of severe financial impact on the defendant-husband if the funds are subject to the wife’s restraining notice. The defendant baldly asserted that there is such harm, but when push comes to shove, had no extrinsic proof to back up his assertions. There was no evidence of other unpaid creditors or financial hardship to the defendant. In the absence of such factual assertions, the court was not inclined to grant any protective order based on an inherent financial harm to the defendant-husband.

Further, the court addressed the argument that the defendant-husband did not have an interest in the escrowed funds. After reviewing the retainer agreement, the court found that according to the retainer agreement, the retainer paid was a “security retainer” that defendant’s attorney could not draw upon until the work was performed and the client was billed.  Until the bill was issued, the funds remained property of the client and the client would be entitled to the funds if the relationship was terminated. Therefore, the court held that defendant-husband continued to hold an interest in the retainer.

Finally, the husband’s attorney argued that his lien interest in the escrowed funds is superior to the plaintiff-wife’s claim for unpaid maintenance. The defendant-husband, in this instance, argued that the retainer funds, which are billed against, but not yet transferred into the attorney’s accounts, are subject to the attorney’s lien for services and that the wife, as a judgment creditor, did not have a superior claim to those funds. The court rejected this argument outright stating that:

To say husband’s argument is somewhat untested in New York is an understatement. This court can find no prior precedents to support this novel theory. In the absence of any precedents and the strong policy preference in New York statutory and case law to allow collection of family support funds, this court is unwilling to recognize that the husband’s counsel’s retaining lien holds a superior position when compared to the wife’s claims against the retainer funds on deposit with counsel.

Given the above, whenever a family law attorney is involved in defending post-divorce proceedings involving claims for unpaid spousal maintenance or child support, that attorney’s retainer is at risk of being restrained and, ultimately, collected by the opposing party. This makes representation of clients in similar circumstances risky and attorney is jeopardizing his chances of being paid. Since the court in M.M. suggested that advanced payment retainer, unlike the advanced payment retainer utilized by defendant-husband’s attorney, would not be considered property of the defendant, then the retainer would not be subject to being restrained. Therefore, utilizing that type of retainer would reduce the risk, however, there may be other issues since New York matrimonial rules frown upon non-refundable retainers. Another option, and probably a better one, would be to have a third party to pay the retainer.

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