LEO: Contingent Fee Agreements - Divorce:  LE Op. 1298


Contingent Fee Agreements - Divorce: Propriety of Contingency

Fee in Representation of Ex-Wife in Appeal of Property



October 25, 1989


You have advised that your client is a divorced woman, now living in

California, who wishes to appeal the court's equitable distribution order

classifying certain of her ex-husband's property as non-marital, thereby

eliminating any partial distribution to her. You indicate that the woman

is unable to pay customary (hourly or flat-rate) legal fees and wishes for

you to pursue the appeal of the property classification on a proposed

contingency fee arrangement which would apply only to any award out of any

reclassified property. You indicate that no contingency fee would be taken

from the trial court's monetary award.


You have asked the Committee to opine on the propriety of such a

contingency fee arrangement based strictly upon any reclassification of

the marital assets which would benefit your client above the existing

trial court's monetary award.


Although the specific mandatory disciplinary rule applicable to

contingent fee arrangements, DR:2-105(C), would not specifically

prohibit such arrangements in domestic relations cases, the aspirational

nature of Ethical Consideration 2-22 [ EC:2-22] indicates that, because

of the human relationships involved and the unique character of the

proceedings, contingent fee arrangements in domestic relations cases are

not appropriate. The Committee believes that the disfavor with which

contingent fees in domestic relations matters are viewed is based upon the

public policy intent to assist in the preservation of marital harmony

where reconciliation is possible. Were contingent fees permissible at the

original trial court level, such arrangements might be construed as

promoting divorce.


It has been the longstanding opinion of this Committee that such

arrangements are improper except in rare circumstances. LE Op. 189 sets

forth the reluctance of this Committee to approve contingent fees in

domestic relations cases and finds that such fees are only appropriate in

those situations where the impact on human relationships will clearly not

be adversely affected. The Committee has in the past opined that

contingency fees for the collection of spousal or child support arrearages

were not improper if the special conditions set forth in LE Op. 189 were

present. (See LE Op. 667, LE Op. 405) The Committee has conversely found

that no such special circumstances existed to permit contingent fee

arrangements based upon a percentage of the court-awarded lump sum

property settlement ( LE Op. 423) or for representation of a divorced

spouse's claim against her husband's military retirement pay ( LE Op.

568). More recently, however, the Committee has opined that a contingent

fee arrangement was permissible for an attorney's representation of a

divorced spouse with regard to a valuable asset that belonged to the

parties but had been neither contemplated nor included in the settlement

agreement since its very existence had been forgotten by the client at the

time the property settlement had been negotiated. (See LE Op. 1062)


If the client is unable to pay reasonable fees, the Committee is of the

opinion that, since the parties are in fact divorced and it does not

appear that any human relationships would be adversely affected, a

contingent fee arrangement would not be improper if based only upon any

reclassification of the marital assets which would result in additional

monies available to the wife above the trial court's award.


Committee Opinion October 25, 1989