Can a lawyer take a contingent fee to collect delinquent child support after a divorce is final, and can it cover future payments?
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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 Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A custodial spouse asked a lawyer to collect child support delinquent under a final divorce decree. The lawyer asked whether she could take the matter on a contingent fee, whether the fee limited the enforcement remedies she could pursue, and whether the fee could reach future support payments as well as arrearages.
On the first question, the committee noted that SJC Rule 3:05(3) bars contingent fees "in respect of the procuring of a divorce," and that Guenard v. Burke read that bar to reach any domestic-relations contingent fee entered before final judgment. Because this matter was post-divorce, a literal reading of Rule 3:05(3) permitted a contingent fee, and the committee followed Guenard's direction to apply the rule literally; it concluded a contingent fee to collect delinquent child support is permitted once the divorce is final.
On remedies, the committee concluded the lawyer was generally free to choose the most appropriate enforcement action with one limit: Rule 3:05(3) also bars contingent fees tied to "any favorable disposition of a criminal charge." Treating criminal contempt as a criminal charge, and the petitioning lawyer as in substance the prosecutor, the committee held that a fee may not be contingent on the outcome of a criminal contempt proceeding to enforce child support. On future payments, the committee said Rule 3:05 does not categorically bar contingent fees based on future payments, but they must be reasonable under DR 2-106 (either a percentage of each payment as received or based on present value). It flagged additional concerns: the percentage should reflect genuine risk of non-recovery (routine future payments under a standing order may present no real contingency); fees on the present value of future payments should be avoided where payments are speculative or modifiable; and, most important, because support is calibrated to the child's needs, a lawyer must avoid depriving the child of essential funds and should inform the court of the fee arrangement.
Currency note
This opinion was issued in 1994, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer collect child support on a contingent fee?
A: Yes, once the divorce is final. The committee read SJC Rule 3:05(3)'s bar literally, so it reached only fees "in respect of the procuring of a divorce" and not a post-divorce collection action.
Q: Can the contingent fee depend on a criminal contempt result?
A: No. The committee treated criminal contempt as a criminal charge under Rule 3:05(3) and held a lawyer's fee may not be contingent on the outcome of a criminal contempt proceeding.
Q: Can the fee be based on future support payments?
A: Only if reasonable. The committee said such fees are not categorically barred but must reflect real risk of non-recovery, avoid present-value fees where payments are speculative, not deprive the child of needed funds, and be disclosed to the court.
Background and rules framework
The opinion applied SJC Rule 3:05(3), (5)(e), and (6) (contingent fee restrictions, including the bars on fees procuring a divorce or a favorable criminal disposition) and DR 2-106 (reasonable fees), corresponding to Model Rule 1.5, including its restriction on contingent fees in domestic relations matters. It relied on Guenard v. Burke and on prior MBA fee opinions.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.5 / SJC Rule 3:05(3), (5)(e), (6); DR 2-106 (contingent fee limits; reasonable fees)
Cases:
- Guenard v. Burke, 387 Mass. 802 (1985) (apply the contingent-fee rule literally in domestic relations)
- McInerney v. Massassoit Greyhound Ass'n, 359 Mass. 339 (1971)
Other opinions cited:
- MBA Opinion 77-7 (modest fees where recovery is not genuinely contingent)
- BBO Private Reprimand No. PR-34, 6 Mass. Atty. Disc. Reports 439 (contingent fee in a structured settlement)
See also
- MA Bar Ethics Op. 95-2: Non-refundable retainers for a specific case
- MA Bar Ethics Op. 94-10: Advertising contingent fee rates
Source
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