concurring.
To be internally consistent, this Opinion needs to address the problem created by Sullivan v. Levin, Ky., 555 S.W.2d 261 (1977). Sullivan holds that a lawyer retained by a financially disadvantaged spouse, who accepts representation in the expectation that his fee will be awarded under KRS 403.220, can no longer pursue this fee if the parties reconcile and drop the case.
The fundamental premise in Sullivan was that a lawyer’s interest in obtaining a fee in a divorce action is only derivative, that it “does not exist for the protection of the attorney, but is strictly for the benefit of the client.” Id. at 263.
It is this statement from Sullivan upon which the respondent/husband in the present case relied, and the Court of Appeals relied, when refusing a fee otherwise appropriate under KRS 403.220 to an attorney representing a wife “pro bono.”
There is nothing in KRS 403.220 specifically addressing the status of a “pro bono” attorney. To the contrary, the statute is simply a statutory redefinement of the standard under which the trial court in a *631divorce case may address the imbalance in “the financial resources” of the parties. The range of cases to which it applies covers the destitute and the indigent, and it also covers the spouse who is neither, but simply proportionally worse off. The threshold consideration is not whether the attorney’s client can afford to pay any fee, but simply what equity requires “considering the financial resources of both parties.”
The underlying problem is the same for the attorney representing the indigent pro bono and the attorney representing the spouse who is financially needy but not totally destitute. In both cases there is neither reason nor excuse for permitting the opposing spouse with the financial resources to pay to escape the liability which the statute imposes.
Here we hold there is no reason to disregard KRS 403.220 simply because services will be for free if the court awards no attorney’s fee. Likewise, contrary to the holding in Sullivan, there is no reason for denying the attorney’s fee simply because the parties have reconciled and the formerly financially disadvantaged spouse, who still cannot afford to pay her attorney unless the court awards a fee, no longer wishes to see the attorney paid.
The fallout from Sullivan, which should have been obvious from the outset, is that if the client and her spouse reconcile, and the divorce is dropped, the attorney for the indigent spouse is left unable to collect a fee under this statute, and has no other recourse. After reconciliation, the attorney’s former client has no further interest in her former attorney obtaining a fee from the spouse with whom she is now reconciled.
This creates a conflict of interest for the attorney between his duty to his client to promote a reconciliation and his own financial interest which will be destroyed by the reconciliation. This conflict of interest defeats both the purpose of the statute and the best interest of the public.
The Opinion in the Sullivan case gives a second reason for denying the fee, a reason which bears no relation to the controlling statute and which will not withstand logical analysis: “A lawyer’s duty to represent the interests and wishes of his client comes ahead of his entitlement to a fee.” 555 S.W.2d at 263. This bell has a beautiful ring when tolled to announce the commencement of church services, but it is a clanging noise in the corridors of divorce court. It causes the financially disadvantaged spouse to be denied access to competent counsel who hesitate to accept employment knowing they will receive no fee in the event of reconciliation.
The decision in this case cuts the ground out from under Sullivan v. Levin. We overrule it.
STEPHENS, C.J., and GANT and LAMBERT, JJ., concurring.