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