Can a lawyer take a contingent fee to collect past-due child support or alimony after a judgment?

Plain-English summary

The committee answered yes to whether a lawyer may enter a contingent fee arrangement for collecting back child support or alimony. It began with the general rule that a lawyer may not acquire a financial interest in the subject matter of litigation (DR 5-103), subject to DR 5-103(A)(2), which permits a reasonable contingent fee in civil cases because it may be the only way a layperson can obtain a lawyer of his choice (EC 5-7).

The committee then addressed the domestic-relations limitation. In Overstreet v. Barr, 255 Ky. 82, 72 S.W.2d 1014 (1934), the court held a contingent fee contract between a wife and her lawyer in a divorce case void against public policy, consistent with EC 2-20's statement that contingent fee arrangements in domestic-relations cases are rarely justified. The reason such contracts are contrary to public policy is their tendency to deter or prevent a reconciliation between husband and wife, and because it is the court's statutory duty to set support and alimony in amounts appropriate to need and resources, which a private percentage fee tends to frustrate. The committee reasoned that in a post-judgment contingent fee for back child support or alimony, reconciliation would not be possible and the Overstreet rationale would not fit; it cited Manning v. Edwards, 205 Ky. 158, 265 S.W. 492 (1924), holding that where a contingent fee contract calls for proceedings between husband and wife to settle property rights but no divorce is contemplated, the contract is valid. The committee added that DR 2-106(A)'s bar on a clearly excessive fee must be followed, that whether a fee is fixed or contingent is a factor in judging reasonableness (DR 2-106(B)), and that a lawyer should enter a contingent fee arrangement only where it will benefit the client (EC 5-7).

Currency note

This opinion was issued in 1979 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer charge a contingent fee to collect overdue child support or alimony?

A: Yes, under this opinion, where the collection is post-judgment so reconciliation is no longer at stake, provided the fee is reasonable.

Q: Why are contingent fees usually disfavored in domestic cases?

A: The committee explained the public-policy concern is that such fees tend to deter reconciliation between spouses and can frustrate the court's setting of appropriate support and alimony.

Q: What limits apply to the contingent fee here?

A: It must not be clearly excessive (DR 2-106(A)); whether the fee is fixed or contingent bears on reasonableness (DR 2-106(B)); and the arrangement should benefit the client (EC 5-7).

Background and rules framework

The opinion applies DR 5-103 (financial interest in litigation, with the contingent-fee exception), DR 2-106 (reasonable fees), and EC 2-20 and EC 5-7 of the former Code, construing the domestic-relations limit against Kentucky case law. The modern analog is Model Rule 1.5, including Rule 1.5(d)'s restriction on contingent fees in certain domestic-relations matters.

Citations and references

Rules of Professional Conduct:

• DR 5-103 (financial interest), DR 2-106 (fees), EC 2-20, EC 5-7; modern analog Model Rule 1.5 (including 1.5(d))

Cases:

• Overstreet v. Barr, 255 Ky. 82, 72 S.W.2d 1014 (1934), contingent divorce fee void against public policy
• Manning v. Edwards, 205 Ky. 158, 265 S.W. 492 (1924), contingent fee valid where no divorce is contemplated

Other opinions cited:

• KBA E-168

See also

• KBA Ethics Op. E-216: Interest, Advances, and Litigation Costs
• KBA Ethics Op. E-217: Buying Estate Property; Property Fees
• KBA Ethics Op. E-202: Bar Minimum-Fee Schedules

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-205.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-205
Issued: January 1979

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer enter into a contingent fee arrangement for collection of back child support or alimony?

Answer:

Yes.

References:

Opinion KBA E-168; DR 2-106, 5-103; EC 2-20, EC 5-7, Overstreet v. Barr, 255 Ky. 82, 72 S.W.2d 1014 (1934); Manning v. Edwards, 205 Ky. 158, 265 S.W. 492 (1924)
OPINION

In general, a lawyer may not acquire a financial interest in the subject matter of the litigation he is conducting for a client, DR 5-103. DR 5-103(AX2) permits a lawyer to make a reasonable contingent fee contract in civil cases. The reason for this is because it may be the only means by which a layman can obtain the services of a lawyer of his choice, EC 5-7.
In Overstreet v. Barr, 255 Ky. 82, 72 S.W.2d 1014 (1934), the court held a contingent fee contract between a wife and her lawyer in a divorce case to be void against public policy. This case supports EC 2-20 which stated, “because of the human relationships involved and unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified.” The reason why such contracts are held to be contrary to public policy is because of their tendency to deter or prevent a reconciliation between the husband and wife. It is also the statutory duty and responsibility of the court to see that support for children and alimony to the wife are provided in amounts appropriate to their needs and the husband’s financial resources. The establishment of a fee by private contract as a percentage of the amount of support, alimony, and other property awarded to a party by the court tends to frustrate the court’s action in settling these amounts at appropriate figures.
In a contingent fee for back child support or alimony post judgment, a reconciliation would not be possible and would not fit the rationale of Overstreet v. Barr. Manning v. Edwards, 205 Ky. 158, 265 S.W. 492 (1924), stated, “Where the contingent fee contract calls for legal proceedings between husband and wife to settle property rights, but no divorce action is contemplated, the contract is valid.” However, DR 2-106(A) which states “A lawyer shall not enter into an agreement for, charge, or collect a clearly excessive fee” should be followed. One

of the factors to be considered as guides in determining the reasonableness of a fee is whether the fee is fixed or contingent, DR 2-106(B). A lawyer should enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client, EC 5-7.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.