Can an attorney obtain a writ of execution against a judgment creditor's property without violating former rule 4?

California, United States of America


The following excerpt is from Hawk v. State Bar, 247 Cal.Rptr. 599, 45 Cal.3d 589, 754 P.2d 1096 (Cal. 1988):

In Silver v. State Bar (1974) 13 Cal.3d 134, 139, 117 Cal.Rptr. 821, 528 P.2d 1157, we confirmed that there were two reasons that the attorneys in Ames, supra, 8 Cal.3d 910, 106 Cal.Rptr. 489, 506 P.2d 625, had violated former rule 4: not only had they acquired an interest in the subject matter of the litigation for which they had been retained, but they put themselves in the position of being able to extinguish their client's interest in the property. ( Silver, supra, 13 Cal.3d at p. 139, 117 Cal.Rptr. 821, 528 P.2d 1157.) The attorney violated former rule 4 when after getting a court order for husband to pay attorney fees in a domestic matter, he acquired a writ of execution against husband's property and levied on his own writ instead of his client's (wife's), eventually buying the property at the sheriff's sale. (Id. at pp. 139-140, 117 Cal.Rptr. 821, 528 P.2d 1157.) We said that even if the attorney had gotten a judgment ordering payment of attorney fees in a separate action, we doubted that he could have executed the judgment and bought his client's judgment creditor's property without violating former rule 4. Again, acquiring the ability to summarily extinguish the client's interest in property is what makes the acquisition "adverse."

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