LEO: Contingent Fee: Obtaining Judgment LE Op. 1174
Contingent Fee: Obtaining Judgment Against the Estate of the
Deceased Maternal Parent for Child Support Arrearages.
October 26, 1988
You advise that you represented the maternal grandmother in an action to
obtain custody of her two illegitimate infant grandchildren from their
mother in July, 1986. Parental support was ordered in the amount of $250
per child per month and approximately $300 in total support payments were
made by the mother until her untimely death as a result of an automobile
accident, which occurred on November 5, 1987. There are several claims
pending against the estate, one of which is a judgment for child support
payments which you filed on July 14, 1988, in the amount of $6,964 which
was returned in favor of your client.
You originally accepted employment on a contingency fee basis and after
discussion of this matter with other attorneys, you wish to know whether
accepting employment for the collection of child-support arrearages
against the estate of a deceased on a contingency fee basis is in
violation of the Virginia Code of Professional Responsibility.
The Committee would direct your attention to LE Op. 667 and LE Op.
850 in which the Committee previously opined that it is ethically improper
for an attorney to accept employment on a contingent fee arrangement based
on a percentage of the amounts recovered in an action for child-support
arrearages, except under the following conditions: (1) the child involved
will soon reach the age of maturity; (2) the attorney is convinced that
the contingent fee arrangement would not undermine the noncustodial
parent's relationship with the minor child; (3) the client is indigent or
in a financial position which otherwise would not allow her to obtain
adequate counsel on an hourly fee basis; and (4) the fee arrangement is
fair and reasonable.
Under the limited facts as you have outlined them in your inquiry, the
Committee opines that the aforementioned legal ethics opinions are
dispositive of your inquiry. The Committee is of the view that the
propriety of the contingent fee arrangement could not be affected by the
children's ages as the noncustodial parent with whom a relationship would
have been enjoyed is deceased, nor is it possible that a contingent fee
agreement would undermine this relationship. (Under the facts, there is no
evidence that a biological, paternal relationship exists that could be
undermined or diminished.) Therefore, the determination of whether the
contingent fee arrangement is ethically permissible depends on whether the
client would not be in a financial position to obtain adequate counsel on
an hourly fee basis and whether the fee is fair and reasonable.
Committee Opinion October 26, 1988