Can a lawyer charge a contingent fee to collect past-due alimony or child support that is already owed?

Plain-English summary

The committee was asked whether a lawyer may be retained on a reasonable contingent basis to collect past-due alimony and past-due child support payments.

It relied on N.Y. State 390 (1975), which held a contingent fee arrangement not improper provided the stringent criteria of EC 2-20, EC 5-7, and DR 2-106 are met, and found that rationale applicable to the collection of support arrears. The committee acknowledged EC 2-20's statement that, "because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified," but read that cautionary language to apply to actions affecting the marital status of the parties, not to cases solely for the collection of past-due alimony and child support (citing N.Y. County 275 (1929) and N.Y. County 533 (1964)).

The committee noted that the only specific prohibition on contingent fees in DR 2-106 is in criminal cases. A reasonable contingent fee for collecting support arrears was therefore not improper.

Currency note

This opinion was issued in 1976, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (fees are now governed by Rule 1.5, which separately restricts contingent fees in domestic relations matters). Subsequent rule amendments or later opinions may have changed the analysis; current New York rules and court rules impose specific requirements on contingent and matrimonial fees. Treat this page as historical context, not current guidance.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 take a contingent fee to collect overdue child support?

A: Under this opinion, yes, if the fee is reasonable. The committee held that collecting arrears already owed is distinct from a domestic relations action affecting marital status, where contingent fees are disfavored.

Q: Doesn't the Code discourage contingent fees in domestic relations cases?

A: Per the opinion, EC 2-20's caution applies to proceedings affecting the parties' marital status, not to the pure collection of past-due alimony or support. The committee also noted DR 2-106 specifically bars contingent fees only in criminal cases.

Background and rules framework

The opinion applies EC 2-20, EC 5-7, and DR 2-106 of the then-current New York Code, distinguishing collection of fixed, past-due support from contested domestic relations litigation. The current Model Rule analogue is Rule 1.5, which addresses fee reasonableness and separately limits contingent fees in domestic relations matters.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees; limits on contingent fees in domestic relations matters)
• NY EC 2-20; EC 5-7; DR 2-106

Other opinions cited:

• N.Y. State 390 (1975): contingent fee proper if EC 2-20, EC 5-7, DR 2-106 criteria are met
• N.Y. County 275 (1929); N.Y. County 533 (1964): collection of arrears distinguished from marital-status cases

See also

• NY State Bar Op. 747: Contingent fee to collect matrimonial arrears
• NY State Bar Op. 819: Settling a fee below a court award in a domestic relations case
• NY State Bar Op. 464: Contingent reimbursement of litigation costs

Source

• Landing page: https://nysba.org/opinion-443/