Can a lawyer collect a contingent fee that exceeds the attorney's fees the court awarded, up to the agreed one-third of the recovery?

Plain-English summary

The inquiry asked whether a lawyer could enter a contingent-fee agreement entitling him to be paid out of the judgment to the extent needed to bring his fee up to one-third of the total recovery, even when the court awarded attorney's fees smaller than the agreed contingent fee.

The committee noted that the former ISBA Code did not address contingent fees except to bar them in criminal cases, but that Illinois Supreme Court Rule 2-106(c) now defined and regulated them, requiring a writing, a stated method of computation, and a closing statement, and continuing the criminal-case prohibition. On the substance, the committee concluded that a contingent-fee agreement may be entered for a fee in excess of the amount recovered in a lawsuit if no statute prohibits it.

The committee drew the converse line as well: if the court's awarded fee is greater than the agreed-upon fee, the lawyer is limited to the contract amount, because the award is the property of the client, not the attorney.

Currency note

This opinion was issued in 1981, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rule (Rule 1.5), citing also ISBA Opinion 90-10, while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a contingent fee be larger than the attorney's fees a court awards?

A: The opinion concluded yes, absent a statutory prohibition; the contingent-fee agreement controls and the lawyer may be paid out of the judgment up to the agreed share.

Q: What if the court awards more in fees than the contingent-fee agreement provides?

A: Per the opinion, the lawyer is limited to the contract amount, and the excess award is the property of the client, not the attorney.

Q: Did the rules impose form requirements on the agreement?

A: The committee pointed to Rule 2-106(c), which required contingent-fee agreements to be in writing, to set out the method for determining the fee, and to provide a closing statement.

Background and rules framework

The opinion applied Illinois Supreme Court Code of Professional Responsibility Rule 2-106(c) (definition and regulation of contingent-fee agreements), noting the former ISBA Rule DR 2-107 had addressed contingent fees only to bar them in criminal cases. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.5 (fees, including contingent fees), corresponding to ABA Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• Illinois Supreme Court Code Rule 2-106(c); former ISBA Rule DR 2-107 (applied in the opinion)
• Illinois RPC 1.5 (2010 equivalent per the Board's affirmation)
• MR 1.5 (fees, including contingent-fee requirements)

Other opinions cited:

• ISBA Opinion 90-10 (referenced in the Board's 2010 affirmation)

See also

• ISBA Ethics Op. 84-09: Contingent Fee in a Criminal Matter
• ISBA Ethics Op. 12-20: Contingent Fee for Discovering and Collecting Funds
• ISBA Ethics Op. 87-03: Disbarred Lawyer's Fee in a Contingent Matter

Source

• Landing page: https://www.isba.org/ethics/opinions/723