In a divorce case, can a lawyer make the client's fee obligation contingent on the court ordering the other spouse to pay the fees?

Plain-English summary

The inquiring attorney, who represents clients in dissolution of marriage actions, asked whether she could accept employment under a contract making the client's obligation to pay contingent on the court awarding attorney's fees from the other spouse. The committee examined Rule 4-1.5(D)(3)(a), which bars a fee in a domestic relations matter whose payment or amount is contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof.

The committee concluded that the proposed agreement is not prohibited. Florida statutes (F.S. 61.16 and 61.052(3)) let the trial court order one spouse to pay the other's attorney's fees to keep the parties on equal footing in securing counsel, and such an order can be entered at the outset, at final judgment, or even after a voluntary dismissal. Because the fee can be ordered without a divorce being secured and regardless of the amount of alimony, support, or property, a fee made contingent on a court fee award against the other party does not trigger either prohibited contingency.

The committee explained the policy: contingent fees are condemned in divorce cases because a fee contingent on securing a divorce gives the lawyer an interest in thwarting reconciliation, and a fee tied to the amount of support or property can lead the lawyer to maximize that amount at the expense of other client interests such as custody. A fee contingent on a court order requiring the other party to pay presents neither evil and instead serves the desirable purpose of ensuring the party with lesser means can secure competent counsel.

Currency note

This opinion was issued in 1987, before The Florida Bar's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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 divorce lawyer use a contingent fee?

A: The opinion concluded that a fee contingent on the court ordering the other spouse to pay is permissible; the rule prohibits only fees contingent on securing a divorce or on the amount of alimony, support, or property settlement.

Q: Why is that contingency allowed when others are not?

A: The opinion explained that a court fee award can be entered without a divorce being secured and regardless of the support or property amount, so it does not implicate the prohibited contingencies, and it furthers the statutory purpose of equal access to counsel.

Q: Why are divorce-securing contingent fees condemned?

A: The opinion explained that a fee contingent on securing a divorce gives the lawyer an interest in discouraging reconciliation, and a fee tied to support or property amounts can lead the lawyer to maximize those at the expense of other client interests such as custody.

Background and rules framework

The opinion interprets Rule 4-1.5(D)(3)(a) (Model Rule 1.5) prohibiting certain contingent fees in domestic relations matters, read together with Florida Statutes sections 61.16 and 61.052(3) authorizing court-ordered interspousal attorney's fees.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-1.5(D)(3)(a) / Model Rule 1.5 (contingent fees in domestic relations matters)

Statutes:

• Fla. Stat. 61.16, 61.052(3) (court-ordered attorney's fees in dissolution)

Cases:

• Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
• Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, 386 So. 2d 1277 (Fla. 3d DCA 1980)
• Bevacqua v. Bevacqua, 412 So. 2d 435 (Fla. 4th DCA 1982)
• Irwin v. Irwin, 402 So. 2d 1353 (Fla. 4th DCA 1981)
• Wiggins v. Wiggins, 446 So. 2d 1078 (Fla. 1984)

See also

• FL Bar Ethics Op. 88-10: Contingent Fees Across States
• FL Bar Ethics Op. 98-1: Contingency-Fee Medical Consultant
• FL Bar Ethics Op. 16-2: Client Financing of Legal Fees

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-87-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-87-3-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 87-3
October 15, 1987
Advisory ethics opinions are not binding.

The attorney's fee in a dissolution of marriage action may be made contingent upon the court ordering the opposing spouse to pay the fee.

RPC: 4-1.5(D)(3)(a)
Statutes: F.S. 61.052(3), 61.16
Cases: Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, 386 So.2d 1277 (Fla. 3d DCA 1980); Bevacqua v. Bevacqua, 412 So.2d 435 (Fla. 4th DCA 1982); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Irwin v. Irwin, 402 So.2d 1353 (Fla. 4th DCA 1981); Wiggins v. Wiggins, 446 So.2d 1078 (Fla. 1984)

The inquiring attorney represents clients involved in dissolution of marriage actions. She asks whether it would be ethically proper to accept employment from a client under a contract whereby a client's obligation to pay the attorney is contingent upon the court's award of attorney's fees from the other spouse.

Rule 4-1.5(D)(3)(a), Rules Regulating The Florida Bar, provides:

A lawyer shall not enter into an arrangement for, charge, or collect:
(a) 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[.] [Emphasis added.]

The fee agreement proposed by the inquiring attorney is not prohibited by the above rule.

Florida statutes governing dissolution of marriage proceedings provide that the trial court may, in its sound discretion, make appropriate orders for payment of attorney's fees by one spouse to the other. F.S. 61.16, 61.052(3). The purpose of the statutes is to ensure that the parties are on an equal footing with regard to securing competent counsel. Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla. 1980); Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, 386 So.2d 1277, 1279 (Fla. 3d DCA 1980).

An order awarding fees may be entered at any time during the proceedings. An order of temporary fees may be entered at the outset of the proceedings, with additional fees ordered at final judgment. F.S. 61.16; Bevacqua v. Bevacqua, 412 So.2d 435 (Fla. 4th DCA 1982); Irwin v. Irwin, 402 So.2d 1353 (Fla. 4th DCA 1981). The filing of a voluntary dismissal by the petitioner does not divest the court of authority to assess a reasonable attorney's fee to be paid by one of the parties to the other. Wiggins v. Wiggins, 446 So.2d 1078 (Fla. 1984).

A contract that makes the client's obligation for the attorney's fee contingent upon the court's entry of a fee award against the other party furthers the legislative purpose without violating Rule 4-1.5(D)(3)(a). The rule prohibits contingent fees only when the contingency is the securing of a divorce or the amount of alimony, support or property settlement. Neither of these contingencies is involved in a fee made contingent upon a fee award against the other party. Since the fee order may be entered at the outset of the proceedings or despite voluntary dismissal of the proceedings, the fee clearly is not contingent upon the securing of a divorce. Obviously the fee likewise is not contingent upon the amount of alimony, support or property settlement.

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, contrary to the interests of the parties and of society. 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 other interests of the client (e.g., child custody). Neither of these evils is presented by a fee contingent on a court order requiring the other party to pay. Rather, such a contingent fee serves the desirable purpose of ensuring that the party with lesser means is able to secure competent counsel to protect that party's interests and, indirectly, the interests of society.