In Kentucky, may a lawyer charge a contingent fee in a divorce case, in a property-settlement dispute, or to collect arrearages or newly discovered assets?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Kentucky Rules of Professional Conduct, with citations.
Plain-English summary
The opinion answered several questions about contingent fees in and arising from divorce work. On the core questions, the Committee concluded that a lawyer may not take a divorce case on a contingent fee, citing Rule 1.5(d)(1), and may not take a contingent fee even where the only remaining issues are property-settlement issues. On that second point the Committee acknowledged conflicting views among Hotline Committee members and across states, but was persuaded by Meyers v. Handlon, 479 N.E.2d 106 (Ind. App. 1984), that contingent fees in that context are unnecessary and undesirable.
The Committee concluded that contingent fees are permitted in two related situations. First, a contingent fee may be charged in a case to recover money or property in arrears where the sums are liquidated and have been or are capable of being reduced to judgment (Rule 1.5(d)(1)), and the same applies to recovering past-due child support. Second, where a matter over newly discovered marital assets, found after the action is final, can fairly be described as a new case, a reasonable contingent fee may be appropriate.
Currency note
This opinion was issued in 1994 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Could a Kentucky lawyer take a divorce case on a contingent fee?
A: No. The Committee concluded Rule 1.5(d)(1) bars a contingent fee in a divorce case, including where only property-settlement issues remain.
Q: Could a contingent fee be charged to collect past-due support or arrearages?
A: Yes. Per the opinion, a contingent fee may be charged to recover liquidated sums in arrearage that have been or can be reduced to judgment, including past-due child support.
Q: What about assets discovered after the divorce was final?
A: The Committee concluded that if recovering later-discovered marital assets can fairly be described as a new case, a reasonable contingent fee may be appropriate.
Background and rules framework
The opinion interprets KRPC 1.5 (fees), specifically the prohibition in 1.5(d)(1) on contingent fees in domestic-relations matters where payment is contingent on securing a divorce or on the amount of alimony, support, or a property settlement (Model Rule 1.5(d)(1)). The analysis turns on whether the recovery is a liquidated arrearage or a new matter rather than the divorce itself.
Citations and references
Rules of Professional Conduct:
- MR 1.5 / KRPC 1.5(d)(1) (no contingent fee in domestic-relations matters)
Cases:
- Meyers v. Handlon, 479 N.E.2d 106 (Ind. App. 1984), contingent fees in property-settlement issues are unnecessary and undesirable
See also
- KBA Ethics Op. E-411: Contingent Fees in Divorce Appeals
- KBA Ethics Op. E-394: Contingent Fees for Experts
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-364.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-364
Issued: March 1994
The Rules of Professional Conduct are amended periodically. Lawyers should consult
the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.
Question:
May a lawyer take a divorce case on contingent fee?
Answer:
No. See Rule 1.5(d)(1).
Question:
May a lawyer take a contingent fee in a divorce case if the only remaining issues
involved are property settlement issues?
Answer:
No. See Rule 1.5 (d)(1). There are conflicting views on this issue. Members of
the Hotline Committee have given conflicting opinions, and the law is different
from state to state. However, the Committee is persuaded by the reasoning in
Meyers v. Handlon , 479 N.E.2d 106 (Ind. App. 1984) that contingent fees in this
context are unnecessary and undesirable.
Question:
May a lawyer take a contingent fee in a case arising from a divorce case, (1)
involving the recovery of money or property the payment of which is in arrears,
or (2) in a case in which marital assets are newly discovered after the action is
final.
Answer:
Yes. (1) A contingent fee may be paid in a case involving the recovery of
liquidated sums in arrearage which have been or are capable of being reduced to
judgment. Rule 1.5(d)(1). (2) If this can fairly be described as a new case, then a
reasonable contingent fee may be appropriate.
Question:
May a lawyer take a contingent fee to recover past due child support?
Answer:
Yes. Rule 1.5(d)(1). If these are liquidated sums in arrearage, which have been
or are capable of being reduced to judgment, then this may be appropriate.
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.
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