Opinion No. 1990-4

(Inquiry No. 254 )

Stopping payment on an attorney’s certified check.

An attorney is not required to stop payment on a check if he determines that this is unlawful.

Code Provisions:
Canon 7
Disciplinary Rule 2-110 C 1
7-101 B 2
Ethical Consideration 7-7

Described Facts:
An attorney represented clients in the purchase of a single-family home. At closing of title, the price was paid with a bank check and a certified check of the attorney, who had received the amount of the check from his clients. The sellers were permitted to remain in possession for five days after the closing, but no sum was held in escrow to protect the purchasers. On the day the sellers were leaving the state, the purchasers discovered they had left behind a quantity of refuse that would cost $4,000 to remove. This constituted a breach of the contract of sale, and the purchasers demanded that their attorney immediately stop payment on his Check.

May the attorney stop payment on a check funded by his clients when they demand that he do so?

An attorney is not required to accede to his clients’ demand if he determines that the action is unlawful.

Canon 7 of the Code of Professional Responsibility requires an attorney to represent his client zealously within the bounds of the law. Disciplinary Rule 7-101 B, paragraph 2, permits the attorney to refuse to aid or participate in conduct that he believes to be unlawful, even though there may be some support for the argument that the action is not unlawful.

Procedures may frustrate the attempt to stop payment anyway. Inquiring counsel is clearly concerned, however, with the limits of his obligation to pursue his clients’ interests. The answer is that the attorney does not have to accede to every demand made by a client.

Ethical Consideration 7-7 advises that a lawyer can decide for himself how to handle certain matters that do not go to the merits of a claim, but otherwise a client is entitled to make his decisions. If the client insists on a course that the attorney believes is not warranted under existing law, he may withdraw from further representation of the client. (Disciplinary Rule 2-110 C 1)

Therefore, if the lawyer determines that it is not lawful to stop payment on the check, he may refuse to attempt that and instead advise the clients on other remedies they may have. If the clients continue to insist on an action not waranted by law, the attorney may decline to represent them further.

(Approved by Executive Subcommittee 1-30-90; approved by full Committee 2-21-90)