Can a lawyer take a case to collect past-due alimony or child support on a contingent fee?

Plain-English summary

The Committee was asked whether it is unethical for a lawyer to charge a contingent fee to collect past-due child support and alimony. Noting that Mississippi statutory law does not address the question, the opinion turns to Rule 1.5, which it quotes in full, including the reasonableness factors, the writing requirements for contingent fee agreements, and Rule 1.5(d)(1), which bars a fee in a domestic relations matter that is contingent on securing a divorce or on the amount of alimony, support, or property settlement.

The opinion stresses the comment to Rule 1.5, which states that paragraph (d)(1) does not prohibit a contingent fee agreement for the collection of past-due alimony or support. It explains the policy behind the domestic-relations bar: a contingent fee tied to obtaining a divorce, as in Avant v. Whitten (where the Mississippi Supreme Court held such a contract void as against public policy), gives the lawyer an economic incentive to oppose reconciliation. It also notes that installments of alimony and child support become fixed and vested as they fall due and remain unpaid, citing Rubisoff v. Rubisoff and Hambrick v. Prestwood.

Because collecting past-due alimony and child support necessarily occurs after the divorce, the opinion reasons that a lawyer pursuing such collection on a contingent basis has no incentive to oppose reconciliation, since the divorce is already final. It concludes a lawyer may ethically enter a contingent fee contract to collect past-due alimony and child support, consistent with the majority of jurisdictions, provided the lawyer follows Rule 1.5.

In practice

Under this opinion, the domestic-relations contingent-fee bar in Rule 1.5(d)(1) targets fees contingent on getting a divorce or on the amount of support or property awarded, not the after-the-fact collection of support that has already vested. A lawyer may therefore take a contingent fee to collect past-due alimony or child support, subject to the rest of Rule 1.5, including reasonableness and the written-agreement requirements. The opinion grounds the distinction in the absence of any reconciliation-incentive concern once the divorce is final.

Common questions

Q: Can a lawyer charge a contingent fee to collect back child support?

A: Per this opinion, yes; a lawyer may collect past-due child support (and alimony) on a contingent fee, following Rule 1.5.

Q: Doesn't Rule 1.5 prohibit contingent fees in divorce cases?

A: The opinion explains Rule 1.5(d)(1) bars fees contingent on securing a divorce or on the amount of alimony, support, or property settlement; its comment says it does not prohibit a contingent fee to collect past-due alimony or support.

Q: Why is collecting back support treated differently?

A: The opinion reasons that collection occurs after the divorce is final, so there is no economic incentive to oppose reconciliation, the policy concern behind the divorce-contingent-fee bar.

Q: Must the contingent fee still meet the usual requirements?

A: Yes. The opinion conditions its conclusion on following Rule 1.5, which requires the fee to be reasonable and the contingent fee agreement to be in writing stating how the fee is determined.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.5 (fees, the analog of Model Rule 1.5), including Rule 1.5(c) (written contingent fee agreements) and Rule 1.5(d)(1) (the domestic-relations contingent-fee bar), and relies on the rule's comment regarding collection of past-due support. It frames the policy with Mississippi case law on void divorce-contingent fees and the vesting of support installments.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 / Mississippi Rule 1.5: fees, including Rule 1.5(d)(1) (no fee contingent on securing a divorce or the amount of alimony or support) and its comment (collection of past-due support not prohibited).

Cases:

• Avant v. Whitten, 253 So. 2d 394, 396-97 (Miss. 1971), a fee contingent on obtaining a divorce is void as against public policy.
• Rubisoff v. Rubisoff, 133 So. 2d 534, 537 (1961), alimony installments become fixed and vested when due and unpaid.
• Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980), past-due child support installments become vested as they fall due.

Other opinions cited:

• Kentucky Bar Association Ethics Opinion E-205; Missouri Bar Ethics Opinion 114 (1977); Nebraska State Bar Association Ethics Opinion 78-8; New York State Bar Association Ethics Opinion 443 (1976), all permitting contingent fees to collect past-due support.

See also

• MS Bar Ethics Op. 92: Contingent Fee in a Structured Settlement
• MS Bar Ethics Op. 107: Workers' Comp Expenses Beyond the Fee Cap
• MS Bar Ethics Op. 100: Charging Interest on Delinquent Accounts

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/88/
• Original PDF: https://www.msbar.org/media/1095/et_op_88-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 88

OF THE MISSISSIPPI BAR

RENDERED September 23, 1983

AMENDED April 06, 2013

FEES - a lawyer may ethically accept employment to collect past due alimony and/or child support payments on a contingent fee basis, provided that he or she follows the guidance contained in Rule 1.5, MRPC.

The Ethics Committee of The Mississippi Bar has been asked for its opinion on the following question:

Is it unethical for attorneys to charge on a contingency basis on past due child support and alimony?

Mississippi statutory law does not address the propriety of an attorney's accepting and employment on a contingent fee basis to collect past due alimony and child support. However, the Mississippi Rules of Professional Conduct (MRPC) contains specific ethical guidance concerning the fees for legal service. Rule 1.5, MRPC, states in its entirety:

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(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 or support, or property settlement in lieu thereof; or
(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.

The Comment to Rule 1.5, MRPC, states "[p]aragraph (d)(1) does not prohibit a contingent fee agreement for the collection of past due alimony or support."

Contingent fee arrangements in civil cases are allowed by the Mississippi Rules of Professional Conduct. The basic rationale for their existence is that they may provide the only practical means by which a client may be able to afford to obtain a lawyer to prosecute his claim and that the successful prosecution of the claim produces a fund from which the fee can be paid. The Committee notes that the Supreme Court of Mississippi has held that a contingent fee contract between a lawyer and his client conditioned on the lawyer's obtaining a divorce for the client is void as against public policy. Avant v. Whitten, 253 So. 2d 394, 396-97 (Miss. 1971). This is the rule among the overwhelming majority of states. 1 S. Speiser, Attorneys' Fees 2:6, at 89-90 (1973). The basic rationale for this rule is that public policy should favor reconciliation between husband and wife. However, a contingent fee contract between a lawyer and one client-spouse would place the lawyer in a position of having an economic incentive to oppose such reconciliation.

It is well-settled law in Mississippi that installments of alimony become fixed and vested when they are due and unpaid. Rubisoff v. Rubisoff, 133 So. 2d 534, 537 (1961)(collecting authorities). Likewise, past due installments of child support become vested as they become due. Hambrick v. Prestwood, 382 So. 2d 474, 476 (Miss. 1980).

Given the reality that the collection of past due alimony and child support obviously occur after a divorce, the Committee is persuaded that an attorney pursuing such collection on a contingent fee basis would not be placed in a position of having an incentive to oppose reconciliation between husband and wife because a divorce would have already been granted. Therefore, the Committee concludes that an attorney may ethically enter into a contingent fee contract with a client to collect past due alimony and child support payments. This view is in accord with the majority of those jurisdictions who have considered this question. e.g., Kentucky Bar Association, Ethics Opinion E-205, reprinted at 43 Ky. Bench & B. 36 (April, 1979); Missouri Bar, Ethics Opinion 114 (Sept. 9, 1977), reprinted in 33 J. Mo. b. 465 (1977); Nebraska State Bar Association, Ethics Opinion 78-8; New York State Bar Association, Ethics Opinion 443 (Sept. 20, 1976), reprinted in 48 N.Y. St. B. J.590 (1976).

Accordingly, the Committee is of the opinion that a lawyer may accept employment to collect past due child support and alimony on a contingent fee basis provided that he or she follows the guidance contained in Rule 1.5, MRPC.