In Kentucky, may a lawyer charge a contingent fee to handle an appeal of a divorce decree over whether certain property is marital or non-marital?

Plain-English summary

The opinion asked whether a lawyer could take a contingent fee to appeal a dissolution-of-marriage decree on the question of whether certain property was non-marital. The Committee answered no. KRPC 1.5(d) bars a lawyer from charging "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, maintenance, support, or property settlement," and the Committee read an appeal over property classification as squarely within that language, with no exception for matters on appeal.

The Committee noted that contingent fees in domestic-relations matters had long been void as against public policy in Kentucky and other states (citing Overstreet v. Barr (Ky. 1934) and out-of-state authority), and that the prohibition is often explained as preventing the lawyer from having an incentive to thwart reconciliation. It acknowledged the argument that post-dissolution matters fall outside that reconciliation rationale, but concluded that such matters still fall within the words of the rule and that other reasons support the bar, including eliminating the potential for overreaching or undue influence in a highly emotional situation (quoting In the Matter of Jarvis (Kan. 1994)).

Currency note

This opinion was issued in 2000 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that 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 Treat this page as historical context, not current guidance.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 charge a contingent fee to appeal a divorce decree over property classification?

A: Per the opinion, no. The Committee concluded that KRPC 1.5(d) bars contingent fees in domestic-relations matters and makes no exception for an appeal over whether property is marital or non-marital.

Q: Did it matter that the dispute arose after the divorce was already granted?

A: The opinion concluded it did not. The Committee acknowledged the argument that post-dissolution disputes fall outside the anti-reconciliation rationale but held that they still fall within the words of KRPC 1.5(d).

Q: Why does the rule prohibit contingent fees in domestic-relations matters?

A: Per the opinion, the bar is explained both as removing any incentive for the lawyer to thwart reconciliation and, quoting In the Matter of Jarvis, as eliminating the potential for overreaching or undue influence in an emotionally charged situation.

Background and rules framework

The opinion interprets KRPC 1.5(d)(1) (the Kentucky counterpart to Model Rule 1.5(d)), which prohibits contingent fees in specified domestic-relations matters. The Committee read the rule's text to govern, treating an appeal over property classification as a fee "contingent upon... the amount of... property settlement."

Citations and references

Rules of Professional Conduct:

• MR 1.5 / KRPC 1.5(d)(1) (prohibited contingent fees in domestic-relations matters)

Cases:

• Overstreet v. Barr, 72 S.W.2d 1014 (Ky. 1934), contingent fees in divorce void as against public policy
• In the Matter of Jarvis, 869 P.2d 671 (Kan. 1994), discipline for a contingent fee in a maintenance-modification matter
• Liciardi v. Collins, 536 N.E.2d 840 (Ill. App. 1989); State ex rel. Oklahoma Bar Ass'n v. Fagin, 848 P.2d 11 (Okla. 1992), contingent fees in domestic matters

Other opinions cited:

• Wisc. Op. E-89-2 (1989): Rule 1.5(d)(1) prohibits contingent-fee agreements for the appeal of divorce judgments

See also

• KBA Ethics Op. E-420: Borrowing Litigation Costs and a Security Interest in a Contingent Fee
• KBA Ethics Op. E-408: Lawyer Who Is Also a Real Estate Sales Agent

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-411.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-411
Issued: January 2000

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 an attorney ethically represent a client on a contingency fee basis when the matter is an appeal of the dissolution of marriage decree as it relates to classification of certain property as non-marital?

Answer:

No.

References:

Kentucky Rule of Professional Conduct (KRPC) 1.5(d) (Kentucky Supreme Court Rule 3.130(1.5(d)(1))); Wisc. Op. E-89-2 (1989); In the Matter of Jarvis, 869 P.2d 671 (Kan. 1994); Overstreet v. Barr, 72 S.W.2d 1014 (Ky. 1934); Liciardi v. Collins, 536 N.E.2d 840 (Ill. Ct. App. 1989); State exrel. Oklahoma Bar Ass'n v. Fagin, 848 P.2d 11 (Okla. 1992). OPINION

Kentucky Rule of Professional Conduct (KRPC) 1.5(d) (Kentucky Supreme Court Rule 3.130(1.5(d)(1)) states: (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, maintenance, support, or property settlement, provided this does not apply to liquidated sums in arrearage. This Rule prohibits contingency fees in the enumerated domestic matters and makes no exception for domestic matters on appeal. There is no doubt that a contingency fee arrangement in an appeal regarding the characterization of property in a dissolution is a "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." The Rule clearly prohibits such a fee arrangement. See also Wisc. Op. E-89-2 (1989)(1.5(d)(1) prohibits contingent fee agreements for appeal of divorce judgments); In the Matter of Jarvis, 869 P.2d 671 (Kan. 1994) (public censure for violation of Rule 1.5 of an attorney who entered into a contingency fee agreement with a client for modification of maintenance award; contingency fee entered into after divorce granted). Generally, contracts for contingency fees in domestic relations matters have long been void as against public policy as a matter of contract law in Kentucky and sister states. See

Overstreet v. Barr, 72 S.W.2d 1014 (Ky. 1934); Liciardi v. Collins, 536 N.E.2d 840 (Ill. Ct. App. 1989); State exrel. Oklahoma Bar Ass'n v. Fagin, 848 P.2d 11 (Okla. 1992). Often the ethical proscription and the contract doctrine are explained as preventing the attorney from having an incentive to thwart reconciliation. One might urge that matters handled after the dissolution of the marriage are not within the policy and should not be interpreted to be within the prohibition stated in 1.5(d). Yet, post-dissolution matters are within the words of the Rule's prohibition. In addition, there are other reasons for prohibiting contingency fee arrangements in these situations such as eliminating the "potential for overreaching or undue influence in a highly emotional situation." In the Matter of Jarvis, 869 P.2d 671, 674 (Kan. 1994).
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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.