Can a lawyer take a contingent fee to collect past-due child support when the client can't afford to pay an hourly fee?

Plain-English summary

A client's ex-husband was far behind on court-ordered child support. The client wanted the lawyer to collect it but had no money to pay a reasonable fee and lacked the information needed to obtain a wage-withholding order. The lawyer asked whether he could take the case on a contingency basis.

The Disciplinary Commission concluded the lawyer may enter into a contingent-fee agreement to collect child support where the client is unable to pay a reasonable fee on a non-contingent basis. The opinion explained that contingent fees have historically been condemned in divorce cases because they give the lawyer an interest in discouraging reconciliation and can skew support or property outcomes; the prior Code (in effect 1974 to 1990) had no disciplinary rule barring them but contained Ethical Consideration 2-20 cautioning that such arrangements are rarely justified. New Rule 1.5(d), effective January 1, 1991, broadly prohibits a fee in a domestic-relations matter contingent on securing a divorce or on the amount of alimony, support, or property settlement, with no specific exception.

The opinion reasoned that this broad language does not bar a contingent fee for collecting child-support arrearages once they have been reduced to judgment, drawing on prior Alabama opinions (RO-83-22; Opinion 170) and out-of-state authority (Pennsylvania Bar Opinion 90-98; Florida Bar Opinion 87-3) treating the collection of an established judgment as analogous to collecting any other debt. The marriage has already ended, so the contingent fee gives the lawyer no interest in thwarting reconciliation, and the risk of skewing a property distribution is absent. The Commission concluded it would not violate Rule 1.5(d) to charge a contingent fee to collect unpaid child-support arrearages, subject to three conditions: (1) the fee is fair and reasonable; (2) the client is indigent and no alternative fee arrangement is practical; and (3) no means are available to the client (such as the wage-withholding route) to collect the arrearage.

Currency note

This opinion was later modified by RO-98-01. It was also issued in 1991, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer take a contingent fee to collect overdue child support?

A: Per the opinion, yes, where the arrearages have been reduced to judgment and the client cannot pay a reasonable non-contingent fee, subject to the fee being fair and reasonable, the client being indigent with no practical alternative, and no other collection means available.

Q: Doesn't Rule 1.5(d) bar contingent fees in domestic-relations matters?

A: The opinion read Rule 1.5(d)'s bar as not reaching the collection of an already-entered child-support judgment, which it treated as analogous to collecting any other debt rather than as the kind of domestic-relations proceeding the rule targets.

Q: Why doesn't the usual policy concern apply here?

A: The opinion reasoned the marriage has already ended, so a contingent fee gives the lawyer no interest in discouraging reconciliation, and there is no property distribution for the fee to skew.

Background and rules framework

The opinion interprets Rule 1.5 (Model Rule 1.5, fees), specifically Ala. R. Prof. C. 1.5(d)'s bar on contingent fees in domestic-relations matters, of the Alabama Rules of Professional Conduct, distinguishing the collection of an existing child-support judgment.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 / Ala. R. Prof. C. 1.5(d) (contingent fees barred in domestic-relations matters)
• Former Code of Professional Responsibility, EC 2-20 (caution on contingent fees in domestic relations)

Other opinions cited:

• RO-83-22; Alabama Ethics Opinion 170: collection of reduced-to-judgment arrearages analogous to collecting other debt
• RO-87-96 (paternity action on contingent fee); RO-88-103 (breach of antenuptial contract on contingent fee)
• Florida Bar Professional Ethics Committee Opinion 87-3
• Pennsylvania Bar Association Opinion 90-98

See also

• AL Ethics Op. 1992-17: non-refundable retainers and confidential settlements
• AL Ethics Op. 1992-13: an employer billing clients for its in-house lawyer's work

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1991-05/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-91-05.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-91-05

QUESTION:

FACTS: Client's ex-husband is far behind in his court ordered child support. Client wants me to try and collect the same but client has no money to pay a reasonable attorney fee. Client does not have sufficient information to cause a wage withholding order to be issued (in Mobile the client can go directly to the clerk of the court, pay $15.00 and a wage withholding order will be issued if she knows the name and address of her ex-husband's employer and he is more than 30 days in arrears).

ISSUE: Can I take the case on a contingency fee basis?

You may enter into a contingent fee agreement to collect child support where the client is unable to pay a reasonable attorney fee on a non-contingent basis.

DISCUSSION:

Contingent fees have been condemned and prohibited in divorce cases because they are seen as pitting the lawyer's interests against those of the parties and of society. A fee contingent upon the securing of a divorce gives the lawyer an interest in discouraging or thwarting reconciliation of the parties. A fee contingent upon the amount of support or property settlement has the same effect. In addition, the lawyer would be encouraged to maximize the amount of support or property awarded the client, perhaps sacrificing the client's other interests, such as child custody. (Florida Bar Professional Ethics Committee, Opinion 87-3, 10/87, released 11/87).

The Code of Professional Responsibility of the Alabama State Bar in effect from 1974 until the end of 1990 did not contain a disciplinary rule prohibiting contingent fees in domestic relations matters. The Code did contain, however, an "Ethical Consideration" stating that contingent fee arrangements in domestic relations cases are rarely justified because of the human relationships involved and the unique character of the proceedings. EC 2-20, Code of Professional Responsibility of the Alabama State Bar.

In prior opinions the Disciplinary Commission has noted that the enforcement of contingent fee contracts in a domestic relations case poses primarily a question of law rather than one of ethics. A fee contract contingent upon the amount of alimony an attorney obtains for a client upon the attorney's procuring a divorce is generally held void as against public policy. The major arguments in support of this position are that these agreements give the attorney an interest in avoiding reconciliation. RO-83-22, the Alabama Lawyer, July 1983, pg. 219. Having noted this the Disciplinary Commission concluded that:

"Once a final decree of divorce has been entered awarding alimony and/or child support, the collection of arrearages concerning the same would not discourage reconciliation, promote divorce and therefore violate the public policy against the destruction of marriages. Furthermore, the mechanics of reducing an order for child support and/or alimony to judgment and proceeding to collect the same would not appear to involve 'the human relationships' or 'the unique character of the proceedings' referred to in Ethical Consideration 2-20." Supra 219.

In subsequent opinions the Disciplinary Commission held that a lawyer could accept representation in a paternity action on a contingent fee basis (RO-87-96) and could represent a wife on a contingent fee basis in an action seeking money damages for breach of an antenuptial contract (RO-88-103).

Rule 1.5(d) of the Alabama Rules of Professional Conduct, which became effective January 1, 1991, prohibits a contingent fee in a domestic relations matter that is contingent upon the amount of alimony, support or property settlement. This language is broader than the language contained in EC 2-20 and contains no specific exception. The rule reads as follows:

"(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) Any fee in a 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."

The pivotal question here is whether this broadly restrictive language prohibits contingent fee agreements in child support cases under any circumstances. Clearly it would prohibit contingent fees in the initial divorce proceeding where the marriage is terminated and property and support matters are settled. At least one jurisdiction has ruled that a contingent fee may be charged for collecting a judgment for alimony entered in another state. The theory of this decision is that the prohibition against charging contingent fees in domestic relations matters does not apply because the court had already ascertained the amount of alimony and the representation is limited to collecting an existing judgment. (Opinion 90-98 (undated) Committee on Legal Ethics and Professional Responsibility of the Pennsylvania Bar Association). Although, under the old rules, the Disciplinary Commission of the Alabama State Bar in Ethics Opinion 170 used similar rationale in a case involving arrearages of unpaid child support. The Commission stated, "although the proceeding originated as a domestic relations matter, once the arrearages of child support were reduced to judgment, the collection of the same was analogous to the collection of any other indebtedness."

There are several reasons for continuing this rationale in our interpretation of new rule 1.5(d). First, where the client cannot afford to pay a reasonable attorney's fee, a strict application of the rule would deny the client the benefits of legal representation. In this situation a contingent fee arrangement would serve the desirable purpose of ensuring that the party with lesser means is able to secure competent counsel to protect that party's interest and, indirectly, the interest of society. (Opinion 87-3, Florida Bar Professional Ethics Committee, supra).

Second, the evils that the rule attempts to avoid are not present in this situation. The marriage has been terminated and the contingent fee would not give the lawyer an interest in discouraging or thwarting reconciliation of the parties. Another evil, not present here, is that the lawyer may, because of the contingent fee, influence the distribution of property toward a distribution that favors the lawyer and does disservice to the client and the client's children.

For these reasons, it is our view that it would not be a violation of Rule 1.5(d) to charge a contingent fee in a case involving collection of arrearages in unpaid child support, subject to the following conditions:

(1) that the fee is fair and reasonable

(2) that the client is indigent and no alternative fee arrangement is practical, and

(3) there are no means available to the client (similar to those mentioned in your question) to collect the arrearage.

RWN/clr