December 7, 1981
A lawyer may ethically enter into a contingent fee agreement with a divorced client in pursuit of post judgment proceedings, to enforce the client's property rights established in the judgment of divorce.
References: DR 2-106(C).
A client was previously divorced in XXX County Circuit Court. The inquirer did not represent the client in the original divorce action. The divorce judgment contained a provision for a chose in action. Thereafter, litigation arose with respect to the client's share. During a telephone conference, the lawyer explained that the judgment of divorce provided that the client was to receive one-half of the proceeds of pending litigation involving the other spouse. The spouse's attorney in the litigation also was counsel in the divorce action. The litigation was ultimately settled for an attorney's lien against the settlement proceeds for nearly the amount of the settlement. The lawyer plans to appeal from an adverse ruling of the circuit court on an one-third contingency fee bases. The client is agreeable to this arrangement. The lawyer wishes to know if he/she can ethically charge the client a contingent fee for post judgment proceedings in the Court of Appeals.
DR 2-106(C) states in part:
"A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in a divorce case . . . ."
DR 2-106(C) is based on public policy, which encourages reconciliation of spouses. It is felt that if a lawyer is permitted to charge a contingent fee on the amount recovered for a spouse out of the marital property, the lawyer would have less incentive to promote reconciliation. Once the judgment of divorce has been entered the rationale for the Rule becomes less significant.
In CI-620, this Committee opined that an attorney may ethically enter into a contingent fee agreement with a divorced client for the modification of a judgment of divorce where the basis of the undertaking is fraud or misrepresentation, perpetrated by the former spouse, and the property rights of the client, established by the judgment of divorce, is the sole issue.
Accordingly, it is the opinion of the Committee that you may charge a contingent fee to enforce your client's property rights previously established in the judgment.