Ezel / Ethics Opinions / MBAR
MBAR January 15, 2009

Can a lawyer charge a contingent fee to collect past-due child support after the divorce is already final?

Short answer: Yes. The opinion concludes Rule 1.5(d)(1)'s ban on contingent fees in domestic-relations matters does not reach collecting post-judgment support arrears once the divorce is final and the support amount is set. The lawyer should disclose the free state collection service and may not charge a contingent fee on amounts that service collects.

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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer asked whether she could enter a contingent fee agreement to collect many years of past-due child support in a matter where the divorce was already final.

The opinion starts with Rule 1.5(d)(1), which bars a contingent fee in a domestic-relations matter that is contingent on securing a divorce or on the amount of alimony or support. It notes the language could be read broadly to bar contingent fees in any case involving the amount of support, but observes that the ABA adopted a comment in 2002 (now Comment 6) clarifying that this provision does not preclude a contingent fee for recovering post-judgment balances due under support or alimony orders, because those do not raise the same policy concerns. The committee concludes the Supreme Judicial Court would likely follow the ABA's reading of the rule it adopted.

On that basis, the opinion concludes Rule 1.5(d)(1) does not bar a contingent fee to collect child-support arrears where the divorce is final and the support amount is already set. It adds two limits from Rule 1.5(a)'s bar on a clearly excessive fee: the lawyer should disclose that the Child Support Enforcement Division of the Department of Revenue offers free collection of current and past-due support, and the lawyer may not base any part of her contingent fee on amounts collected through that free service, since doing so would be clearly excessive. Any contingent fee must rest solely on the lawyer's own services.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the timing of the divorce judgment is decisive. The opinion holds that a contingent fee to collect support arrears is permissible once the divorce is final and the support amount is fixed, but that a contingent fee tied to securing a divorce or to the amount of support remains barred by Rule 1.5(d)(1).

The opinion holds that the lawyer should disclose the free Department of Revenue collection service and may not charge a contingent fee on sums that service recovers, because under Rule 1.5(a) that portion of the fee would be clearly excessive.

Common questions

Q: Can I take a child-support collection case on contingency?

A: The opinion concludes you may, if the divorce is already final and the support amount is set, because Rule 1.5(d)(1)'s domestic-relations bar does not reach collecting post-judgment arrears.

Q: Do I have to tell the client about the state's free collection service?

A: Yes. The opinion holds the lawyer should disclose that the Child Support Enforcement Division of the Department of Revenue collects support for free, and may not charge a contingent fee on amounts that service collects.

Q: Would a contingent fee tied to the amount of support still be barred?

A: Per the opinion, yes. Rule 1.5(d)(1) continues to bar a fee contingent on securing a divorce or on the amount of alimony or support; the opinion's exception is limited to collecting arrears under an already-final judgment.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 1.5(d)(1) (no contingent fee in a domestic-relations matter contingent on a divorce or on the amount of support) and Rule 1.5(a) (no clearly excessive fee, and its eight factors). It relies on the ABA's 2002 comment (now Comment 6 to Model Rule 1.5) interpreting the identical Model Rule language. These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

  • MR 1.5(d)(1) / Mass. R. Prof. C. 1.5(d)(1) (contingent fees in domestic-relations matters)
  • MR 1.5(a) / Mass. R. Prof. C. 1.5(a) (clearly excessive fees)

Cases:

  • Guenard v. Burke, 387 Mass. 802 (1985), barring pre-judgment contingent fees in domestic-relations cases under the predecessor rule

Other opinions cited:

  • MBA Opinion 94-4 (contingent fees for collecting past-due support permissible, subject to conditions, under the former rules)

See also

Source

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