Could a Nebraska lawyer use a contingent fee to collect unpaid child support or alimony?

Plain-English summary

The committee considered a contingent-fee arrangement to collect past-due child support for a divorced client. It also addressed whether the client's ability to pay or the identity of the person proposing the arrangement affected the answer.

Former EC 2-20 described contingent fees in civil claims as generally accepted while stating that they were rarely justified in domestic-relations proceedings. The committee distinguished a prospective divorce case, where a fee tied to alimony or property recovery could discourage reconciliation, from collecting an award already entered but unpaid.

It permitted a contingent fee for collecting accrued child support or alimony. The result did not depend on whether the lawyer or client suggested the arrangement or on the client's ability to pay, although the opinion stated that EC 2-20 preferred avoiding such an arrangement when the client could pay.

The opinion distinguished accrued payments from future alimony, quoting authority that permitted a percentage for collecting overdue alimony but not a percentage of later-accruing payments.

Currency note

This opinion was issued in 1978, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent contingent-fee, domestic-relations, child-support, alimony, and fee-agreement rules or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Did the opinion permit a contingent fee to collect unpaid child support?

A: Yes, for accrued and unpaid support.

Q: Did it also address overdue alimony?

A: Yes. The committee applied the same conclusion to accrued, uncollected alimony payments.

Q: Did the client's ability to pay change the result?

A: No, although the opinion noted the former ethical consideration's preference against a contingent arrangement when a client could pay a fixed fee.

Q: Did it matter whether the lawyer or client proposed the contingent fee?

A: No. The opinion called that fact immaterial.

Background and rules framework

Former DR 2-106(C) prohibited contingent fees for criminal defense, while EC 2-20 discussed their use in civil and domestic-relations matters. Nebraska Opinion 76-10 had permitted a contingent fee in a contested paternity action.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 2-106(C) and EC 2-20

Other opinions cited:

• Nebraska Ethics Advisory Opinion 76-10

See also

• New Mexico Ethics Op. 1988-4: Post-decree domestic contingent fees
• Virginia Ethics Op. 850: Child-support arrearage fee factors
• Louisiana Public Op. 05-RPCC-002: Domestic contingency fees

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 78-8

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 78-8

IT IS NOT IMPROPER FOR AN ATTORNEY TO UNDERTAKE REPRESENTATION ON A CONTINGENT FEE BASIS TO COLLECT ACCRUED AND UNPAID CHILD SUPPORT OR ALIMONY.

FACTS

The Committee has been asked if an attorney may ethically represent a divorced wife to collect back child support on a contingent fee basis; and is the answer to the question affected by the client's ability to pay or by which party suggested the fee arrangement.

DISCUSSION

There is no Disciplinary Rule in the Code of Professional Responsibility as adopted in Nebraska which prohibits contingent fees except in the case of representation of a defendant in a criminal case (DR 2-106(C). E.C. 2-20 contains an enlightening discussion on the subject of contingent fees in the following statement:

"Contingent fee arrangements in civil cases have long been commonly accepted in the
United States in proceedings to enforce claims. The historical bases of their acceptance are that (1) they often, and in a variety of circumstances, provide the only practical means by which one having a claim against another can economically afford, finance, and obtain the services of a competent lawyer to prosecute his claim, and (2) a successful prosecution of the claim produces a res out of which the fee can be paid. Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified. In administrative agency proceedings contingent fee contracts should be governed by the same consideration as in other civil cases. Public policy properly condemns contingent fee arrangements in criminal cases, largely on the ground that legal services in criminal cases do not produce a res with which to pay the fee."

In Opinion No. 76-10 this Committee ruled that it was proper for an attorney to represent a plaintiff in a contested paternity suit under a contingent fee arrangement. In the body of the Opinion the statement was made that:

"Courts and ethical opinions generally disapprove of fee arrangements based upon the amount of alimony or property settlements achieved in a divorce action. It is felt that contingent fee arrangements in such cases might tend to discourage reconciliation and are, therefore, contrary to public policy."

CONCLUSION

It is apparent that the public policy considerations present in a prospective divorce action involving alimony and child support or a property settlement do not exist in the situation where the award has been made but is uncollected, and it is the opinion of this Committee that an attorney may properly undertake representation on a contingent fee basis to collect back alimony or support payments if he cares to do so.

This conclusion is shared by recognized authorities. Drinker, for example, in his recognized work on "Legal Ethics" states at Page 177: "A lawyer may accept a percentage for collecting overdue alimony, but not a percentage of that to accrue subsequently."

As to the supplemental questions, in this view it is immaterial whether the attorney or the client suggests a contingent fee arrangement; similarly, the conclusion is not affected by the client's ability to pay although, as indicated in E.C. 2-20, it is preferable to avoid the contingent fee arrangement in such a case.

Nebraska Ethics Advisory Opinion for Lawyers No. 78-8