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Ethics Opinion

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November 16, 1993


    A lawyer may charge a contingency fee in a civil action for assault and battery between spouses as long as there is no divorce action pending or contemplated between the parties.

    References: MRPC 1.5(c) and (d); RI-28, RI-127; CI-620, CI-712, CI-828, CI-901; MCR 8.121; Hosko v. Hosko, 385 Mich 39 (1971); Goldman v. Wender, 122 Mich App 744 (1983); McCoy v. Cooke, 165 Mich App 662 (1988).


A lawyer asks whether a contingent fee arrangement is permissible when a prospective client wishes to institute a civil action for assault and battery against the client's spouse, but does not contemplate divorce.

MRPC 1.5(c) and (d) state:

    "(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or by other law. A contingent-fee agreement shall be in writing and shall state the method by which the fee is to be determined. Upon conclusion of a contingent-fee matter, the lawyer shall provide the client with a written statement of the outcome of the matter and, if there is a recovery, show the remittance to the client and the method of its determination. See MCR 8.121.

    "(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in a domestic relations matter or in a criminal matter."

We have previously noted that the language of MRPC 1.5(d) in prohibiting contingent fees in "domestic relations matters" is broader than the language in former Michigan Code of Professional Responsibility DR 2-106(C), which prohibited the charging of a contingent fee in a "divorce." In RI-28 a contingent fee was allowed to collect past due alimony. In RI-127 a contingent fee was allowed in an action to set aside the property settlement portion of a divorce decree previously entered into based upon the fraud of the client's spouse. Both opinions limited the use of a contingency fee agreement to where it was the only practical means by which the prospective client could pursue the claim, the contingent fee was reasonable and any court awarded fees are credited against the contingent fee. Although opinions issued under DR 2-106(C) allowed contingent fee agreements in post-judgment proceedings following a divorce, e.g., CI-620, CI-712, CI-828 and CI-901, those opinions do not provide authority for interpreting conduct under MRPC 1.5(d).

MRPC 1.5(d) is broader than the ABA Model language which prohibits a contingent fee in any domestic relations matter the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; . . . . In their discussion of 1.5(d) ยง1.5:501 Hazards & Hodes, The Law of Lawyering, it states:

    "The rule against contingent fees in domestic relations matters is of more recent origin [than the rule prohibiting contingent fees in criminal matters] and may have a sounder public policy rationale. Basing a lawyer's fee on the amount of alimony or support recovered seems no more objectionable than basing it on the amount of a jury verdict. Public policy is offended, however, when the fee is made contingent upon the lawyer's obtaining a divorce for his or her client; for the lawyer would then have no incentive to help bring the parties to a settlement that might preserve the marriage.

    "Rule 1.5(d)(1) [the model rule] does not engage in such fine distinction, but provides that lawyers may not use contingent fee arrangements in any domestic relations matter. Since questions of alimony and support are inextricably intertwined with the question of whether the marriage will continue, this broadened ban seems reasonably related to the purposes of the rule."

It appears, therefore, that alimony and support matters, when intertwined with the question of whether the marriage will continue, are included in the MRPC 1.5(d) ban on contingent fees.

Under the facts of this case, there is no divorce suit pending or contemplated. It is conceivable that in limited circumstances a spouse may wish to remain married to an abusive person but to receive monetary damages to compensate for the abuse. It is possible in Michigan for one spouse to maintain an action against the other for certain torts committed during the marriage. Hosko v. Hosko, 385 Mich 39 (1971). Those torts typically are not those intimately bound up with the marriage relationship, but assault and battery actions have been allowed. McCoy v. Cooke, 165 Mich App 662 (1988); Goldman v. Wender, 122 Mich App 744 (1983).

A civil action for assault and battery between spouses under these circumstances is not a "domestic relations" matter for which MRPC 1.5(d) prohibits contingent fees.



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