Can a lawyer charge a contingent fee in a divorce based on the size of the property settlement obtained for the client?

Plain-English summary

The Commission was asked whether Rule 8(c) of the Maine Bar Rules prohibits, in a divorce case, a fee contingent on the amount of the property settlement a lawyer obtains for the client. Rule 8(c), identical to former Rule 88(c) of the Maine Rules of Civil Procedure, provides that no contingent fee agreement shall be made in respect of the procuring of a divorce, annulment, or legal separation.

Quoting the treatise discussion in Field, McKusick & Wroth, Maine Civil Practice, the Commission noted the two public-policy grounds on which marital actions are almost universally thought improper for contingent fees: such an agreement tends to deter or prevent reconciliation between husband and wife, contrary to the public interest in preserving marriage; and it interferes with the court's statutory responsibility to fix alimony, child support, and the attorney's fees borne by the husband.

The Commission concluded that Rule 8(c) prohibits a contingent fee in the situation posed. A contingent fee is specifically prohibited in a divorce case by Rule 8(c)(2), and both policy grounds apply even when the fee is tied to the property settlement. The Commission added that, in such cases, the attorney faces the additional temptation to negotiate a settlement maximizing the property aspects on which the fee is based, at the possible expense of non-monetary items such as visitation rights.

Currency note

This opinion was issued in 1980, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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 divorce lawyer's fee be contingent on the property settlement obtained?

A: The opinion concluded no. Rule 8(c)(2) specifically bars a contingent fee in respect of procuring a divorce, and that bar applies even when the fee is keyed to the property settlement rather than the divorce itself.

Q: Why are contingent fees barred in divorce cases?

A: The opinion adopted two public-policy grounds: such a fee tends to deter reconciliation, and it interferes with the court's statutory role in fixing alimony, support, and counsel fees.

Q: Is there an added concern when the fee tracks the property settlement?

A: The opinion concluded yes. It noted the lawyer would face an extra temptation to maximize the monetary property terms on which the fee depends, at the possible expense of non-monetary items such as visitation rights.

Background and rules framework

The opinion interprets Maine Bar Rule 8(c)(2) (identical to former M.R. Civ. P. 88(c)), which bars contingent fee agreements in respect of procuring a divorce, annulment, or legal separation. It corresponds to Model Rule 1.5(d) (limits on contingent fees in domestic relations matters). The analysis turns on the two settled public-policy grounds and on the conflict a property-based contingent fee creates between monetary and non-monetary terms.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5(d) (contingent fees in domestic relations matters)
• Maine Bar Rule 8(c)(2); former M.R. Civ. P. 88(c)

Other authorities:

• 2 Field, McKusick & Wroth, Maine Civil Practice 362 (2d ed. 1970) (public-policy grounds against contingent fees in marital actions)

See also

• Maine Ethics Op. 11: A Contingent Fee for Collecting Support Arrears
• Maine Ethics Op. 64: Contingent Fee Interest in Real Estate That Is the Subject of the Suit
• Maine Ethics Op. 8: A Conflict When an Associate Consults With the Opposing Spouse

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89455

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

The Commission has been asked whether Rule 8(c) of the Maine Bar Rules prohibits in a divorce case a fee contingent upon the amount of the property settlement that a lawyer may obtain for his or her client.

Opinion

Rule 8(c) of the Maine Bar Rules, which is identical to former Rule 88(c) of the Maine Rules of Civil Procedure, provides in relevant part:

(c) Proceedings or Claims to Which Applicable. No contingent fee agreement shall be made . . . (2) in respect of the procuring of a divorce, annulment of marriage or legal separation. . . .

In their discussion of Rule 88(c) of the Maine Rules of Civil Procedure as it relates to these questions, the commentators state:

Almost universally such marital actions are thought not to be proper subjects for contingent fee arrangements on two public policy grounds: (1) Such an agreement would have the tendency to deter or prevent a reconciliation between husband and wife, contrary to public interest in preserving the marriage; and (2) such private agreement would interfere with the statutory responsibility of the court to fix alimony for the wife and support payments for the children in amounts appropriate for the needs and the husbands's means, and to fix the attorneys' fees to be borne by the husband. 2 Field, McKusick & Wroth, Maine Civil Practice 362 (2d ed. 1970).

The Grievance Commission concludes that identical Rule 8(c) of the Maine Bar Rules prohibits a contingent fee in the situation posed in the question presented. A contingent fee is specifically prohibited in a divorce case by Maine Bar Rule 8(c)(2). Both of the policies set forth in Maine Civil Practice are involved even though the fee is tied to the amount of the property settlement. Moreover, in such cases, the attorney is confronted with the additional temptation to negotiate a settlement which maximizes the property aspects of the settlement upon which his fee is based at the possible expense of non-monetary items such as visitation rights.