Can a lawyer charge a contingent fee for enforcing a divorce judgment, based on the alimony or child support arrearage recovered?

Plain-English summary

The Commission was asked whether Rule 8(c) of the Maine Bar Rules bars a fee, in a motion to enforce a divorce judgment, that is contingent on the amount of alimony or child support arrears the lawyer recovers for the client. Rule 8(c), identical to former Rule 88(c) of the Maine Rules of Civil Procedure, bars a contingent fee agreement in respect of procuring a divorce, and in any proceeding where the method of determining attorney's fees is otherwise expressly provided by statute or regulation.

The Commission canvassed the treatise discussion in Field, McKusick & Wroth, Maine Civil Practice, which suggested the second exception (procuring a divorce) might not reach post-judgment enforcement motions, but that the third exception could apply to the wife's counsel fees because 19 M.R.S.A. section 722 lets the court order the husband to pay the wife sufficient money to prosecute or defend, including attorney's fees, set as reasonable fees without relation to any contingency. The Commission said it was less certain than the treatise's authors about the proper construction of section 722.

Because the answer depended on resolving a question of law rather than interpreting the Maine Bar Rules, the Commission declined to undertake it, comparing Opinion No. 48 of the Maine Bar Association Ethics Committee (issued February 2, 1977), which reached the same conclusion. It added that, whatever the proper interpretation of section 722, a lawyer would be well advised to disclose any contingent fee arrangement to the court, so that the presiding justice has that prospective income from the plaintiff in mind when ordering counsel fees to be paid by the defendant.

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 Treat this page as historical context, not current guidance.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: Does Rule 8(c) bar a contingent fee for enforcing alimony or support arrears?

A: The opinion did not decide. The Commission declined because the answer turns on construing 19 M.R.S.A. section 722, a question of law it would not resolve, rather than on the Maine Bar Rules.

Q: What does Rule 8(c) prohibit on its face?

A: The opinion noted Rule 8(c) bars contingent fee agreements in respect of procuring a divorce and in any proceeding where the method of determining attorney's fees is otherwise expressly provided by statute or regulation.

Q: Did the Commission give any practical guidance?

A: The opinion stated that, whatever section 722 means, a lawyer would be well advised to disclose any contingent fee arrangement to the court, so the presiding justice knows of that income when ordering the other party to pay counsel fees.

Background and rules framework

The opinion addresses Maine Bar Rule 8(c) (identical to former M.R. Civ. P. 88(c)), which bars contingent fee agreements in procuring a divorce and where attorney's fees are otherwise expressly set by statute or regulation, in light of 19 M.R.S.A. section 722 (court-ordered counsel fees in divorce). It corresponds to Model Rule 1.5(d) (limits on contingent fees in domestic relations matters). The analysis turns on a statutory-construction question the Commission declined to resolve, since its authority runs to the Bar Rules, not questions of law.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• 19 M.R.S.A. section 722 (court order that one spouse pay the other's counsel fees in divorce)

Other opinions cited:

• Maine Bar Association Ethics Committee Opinion No. 48 (Feb. 2, 1977) (same conclusion: declines a question of law)

Other authorities:

• 2 Field, McKusick & Wroth, Maine Civil Practice 362 (2d ed. 1970)

See also

• Maine Ethics Op. 64: Contingent Fee Interest in Real Estate That Is the Subject of the Suit
• Maine Ethics Op. 17: Negotiating Class-Action Attorney's Fees Before Settlement
• Maine Ethics Op. 24: Charging Attorney's Fees Beyond the Amount Allowed by a Commission

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89458

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

Does Rule 8(c) of the Maine Bar Rules prohibit in a motion to enforce a divorce judgment a fee contingent upon the amount of alimony or child support in arrears which the lawyer obtains from his 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 that:

No contingent fee agreement shall be made . . . (2) in respect of the procuring of a divorce . . . or (3) in connection with any proceeding where the method of determination of attorneys' fees is otherwise expressly provided by statute or administrative regulations.

In 2 Field, McKusick & Wroth, Maine Civil Practice, 362 (2nd ed. 1970), it is stated that:

The specific language of the second exception in Rule 88(c) would not seem to go far enough to except post-judgment motions for modification or enforcement of alimony, support or other provisions of a divorce judgment. On the other hand, at least the second policy disfavoring contingent fee agreements applies equally after judgment as before. Furthermore, the third exception of Rule 88(c) applies, at least so far as the wife's counsel fees are concerned, because the statute (19 M.R.S.A. § 722) provides that the court may order the husband to pay the wife "sufficient money for the prosecution or defense thereof," including attorney's fees.

Such fees paid to the wife's attorney are "reasonable fees" for services actually rendered, without any relation to any contingency or to any contingent fee understanding that the wife may have with the attorney. This is a situation "when the method of determination of attorneys' fees is otherwise expressly provided by statute."

The Commission is less certain than the authors of Maine Civil Practice as to the proper construction of 19 M.R.S.A. § 722.

Since the answer to the question presented depends on the resolution of a question of law rather than the interpretation of the Maine Bar Rules, we decline to undertake it. Compare Op. #48 of the Maine Bar Association Ethics Committee issued 2/2/77 in which the same conclusion was reached. The Commission is of the opinion, however, that whatever the proper interpretation of section 722 may be, a lawyer would be well advised to disclose any contingent fee arrangement to the Court so that it is clear that the presiding justice had in mind this prospective income from the plaintiff in making an order that counsel fees be paid by the defendant.

Footnote

[1] The Commission believes that the preferred practice among all lawyers should certainly be to establish procedures that will enable them to recognize conflicts of interest, or potential conflicts, at the earliest possible stage of dealing with a prospective client, in order to avoid the type of problem that arose in the instant case. On the other hand, the Commission recognizes the practical difficulties lawyers face in this regard, particularly in the larger firms (some of which have more than one office location), and the need to obtain certain basic information from a client at the initial conference to avoid additional consultations and expense to the client.