Legal Ethics Opinion No. 1461

Fees--Personal Injury Representation: Contingent Fee on Medical
Compensation Payments

You have indicated that an attorney which represents a minor
child who was struck by an automobile in Virginia has instituted
a personal injury action against the driver.  You further
indicate that the child's parent has an auto insurance policy
which provides medical compensation payments.  The parent's
insurance carrier has agreed to reimburse all medical expenses
and the attorney has sent the pertinent bills to the carrier. 
You also indicate that the attorney's contract with the client
states that the attorney is to receive one-third of all money
recovered.  Finally, you advise that client could have obtained
the reimbursement without the attorney's assistance, but that the
attorney encouraged the client to have no direct dealings with
other insurers.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the attorney to receive his
one-third contingent fee out of this medical compensation

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 2-l05(A) which requires in pertinent part
that a lawyer's fees shall be reasonable; and DR 2-l05(C) which
permits fees to be contingent on the outcome of the matter for
which the service is rendered, except in criminal cases or other
matters in which a contingent fee is prohibited by law.  Further
guidance is available through Ethical Consideration 2-20 which
articulates several criteria by which a determination may be made
as to the reasonableness of a fee, including the time required,
the lawyer's experience, ability, and reputation, the nature of
the employment, the responsibility involved, and the results
obtained; and Ethical Consideration 2-22 which indicates that one
of the historical bases for the acceptability of contingent fee
arrangements in civil cases is that "a successful prosecution of
the claim produces a res out of which the fee can be paid".  Seealso LEO #l89.

The committee is of the view that tasks involved in securing the
payments you describe on contractual obligations due the client
under the client's insurance policy are merely ministerial in
nature.  Thus, the committee opines that where such payments
could be obtained by the client without the services of an
attorney, a contingent fee for securing those payments would be
per se unreasonable.  Should there be extenuating circumstances,
however, which render the pursuit of such payments to be a
complex task, requiring specialized legal knowledge or
experience, a contingent fee might be appropriate.   The
committee believes that one purpose of a contingent fee
arrangement is to encourage a lawyer to accept a case which
carries inherent risks of nonpayment of legal fees.  Conversely,
matters which carry no such risk to the lawyer are not usually
matters in which a contingent fee arrangement is appropriate. 
See, e.g., Anderson v. Kenelly, 547 P.2d 260, 26l (Colo. l976);
The Florida Bar v. Moriber, 3l4 So.2d l45, 148 (Fla. l975); In re
Teichner, l04 Ill.2d l50, l60 (l984).

Committee Opinion
April 13, 1992