LEO: Domestic Relations - Contingent Fees  LE Op. 1081


Domestic Relations - Contingent Fees.


May 17, 1988


You have requested an informal, advisory opinion from the Virginia State

Bar Standing Committee on Legal Ethics concerning a proposed retainer

agreement which was formalized between you and a client on June 12, 1985.

Your client, 29 years old, retained you to file a suit against her father

for child abuse which occurred when your client was a child. In the

retainer agreement, you and your client agreed that your fee would be $100

per hour and that the client would provide you an initial retainer of $2,

500. It was agreed that the client would continue to pay you, even after

the initial retainer was expended, until the matter was settled. In the

event of a judgment or a settlement, you would be entitled to one-third of

such sums received, but from that proportion it was agreed that all of the

hourly fees your client had up to that time paid would be deducted. In the

event that your share of such a judgment or settlement was less than the

hourly sums received, you would not be entitled to any part of such

judgment or settlement, but neither would you be required to forfeit any

part of fees due or paid.


Your client's present counsel has accused you of acting unethically by

entering into this retainer agreement.


In  LE Op. 189 the State Bar set forth its reluctance to approve

contingent fees in domestic-relations cases. The Committee opined in that

opinion that contingent fees are to be approved in domestic-relations

cases only in circumstances where the impact on human relationships will

clearly not be adversely affected. The Committee does not believe the

situation which you described falls under the guidelines of LE Op. 189.


Therefore, the Committee refers you to DR:2-105(C), which states "A fee

may be contingent on the outcome of the matter for which the services are

rendered, except in criminal cases or other matters in which a contingent

fee is prohibited by law. A contingent fee agreement shall state the

method by which the fee is to be determined, including the percentage or

percentages that shall accrue to the lawyer in the event of settlement,

trial, or appeal, expenses to be deducted from the recovery, and whether

expenses are to be deducted before or after the contingent fee is

calculated. Upon conclusion of a contingent fee matter, the lawyer shall

provide the client with a closing statement showing the fee and the method

of its determination."


The Committee believes that the contingency agreement which you entered

into with your client complies with the requirements of DR:2-105(C). The

Committee does advise that upon conclusion of the matter, you should

provide the client with a closing statement showing the fee and method of



Committee Opinion May 17, 1988