If a lawyer takes a matrimonial case at a reduced rate through a bar referral service, can the lawyer still ask the court to award fees from the other spouse at the lawyer's full customary rate?
NY State Bar Ethics Opinion 739: Reduced-fee matrimonial retainers and court-awarded fees
Short answer: A lawyer who handles a matrimonial case at a reduced rate for a low- or moderate-income client may include in the retainer a provision contemplating an application to the court for the other spouse's payment of counsel fees at the lawyer's customary rate, because that is not a prohibited contingent fee.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer participating in a bar-association-sponsored lawyer referral service had agreed to represent a client of limited means in a matrimonial action at a reduced rate. The lawyer asked whether the retainer could provide that the lawyer might apply to the court under Domestic Relations Law section 237 for counsel fees from the client's spouse based on the lawyer's higher customary rate rather than the reduced rate charged to the client.
The committee found nothing in DR 2-103 (governing referral services) prohibiting the arrangement, so the question reduced to whether it would be a contingent fee barred in domestic relations matters by DR 2-106(C)(2)(a). That rule, rooted in a century of New York case law, bars a fee contingent on securing a divorce or measured by the amount of support or property obtained, to avoid giving the lawyer an incentive to promote a marital breakup. The committee concluded the proposed retainer is not such a contingent fee: the higher fee the lawyer might recover from the spouse does not depend on dissolving the marriage or on the amount or distribution of marital assets, because a fee application may proceed even after a reconciliation or settlement.
The committee declined to limit its conclusion to bar-sponsored programs, reasoning that the same logic supports lawyers who undertake reduced-rate representation on their own. It set two conditions. DR 2-106(C)(2)(b) requires a written, plain-language retainer, so the lawyer should state in the retainer the intention to seek court-ordered fees at the customary rate. And in any application to the court, the lawyer should disclose the terms of the retainer, including the reduced-fee agreement, so the court can decide the application on full information. The committee noted that whether the arrangement complies with Part 1400 of the Appellate Division rules is a question of law outside its jurisdiction.
Currency note
This opinion was issued in 2001, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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: Is a reduced-fee retainer that seeks full-rate fees from the spouse a barred contingent fee?
A: The opinion concluded no. The higher fee does not turn on securing a divorce or on the amount of support or property, so it is not a contingent fee prohibited by DR 2-106(C)(2)(a) in a domestic relations matter.
Q: Does this only apply to bar-association referral programs?
A: No. The committee declined to limit its conclusion to referral programs and applied the same reasoning to lawyers who take reduced-rate matrimonial work on their own.
Q: What does the lawyer have to do to use this arrangement?
A: The retainer must be in writing and plain language stating the intent to seek customary-rate fees from the spouse, and on any fee application the lawyer should disclose the reduced-fee terms to the court.
Background and rules framework
The opinion interpreted New York's former Code of Professional Responsibility: DR 2-103(D)(3) (bar-sponsored referral services), DR 2-106(C)(2)(a) and (b) (the bar on contingent fees in domestic relations matters and the written-retainer requirement), DR 1-102 (misconduct and conduct prejudicial to the administration of justice), and EC 2-25 (pro bono and reduced-fee service). It also referenced Domestic Relations Law section 237 (counsel-fee awards). The Model Rule analogues are Rule 1.5(d) (contingent fees in domestic relations matters), Rule 1.5 (fees), and Rule 7.2 (referral services). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.5(d) (contingent fees in domestic relations matters); MR 1.5 (fees); MR 7.2 (referral services)
- NY DR 2-103(D)(3); DR 2-106(C)(2)(a), (b); DR 1-102
Statutes:
- N.Y. Domestic Relations Law section 237 (award of counsel fees from a spouse)
- N.Y. CPLR section 1102(d) (assignment of counsel for a party proceeding in forma pauperis)
Cases:
- Van Vleck v. Van Vleck, 47 N.Y.S. 470 (4th Dep't 1897), barring contingent fees tied to a divorce
- Sadofsky v. Sadofsky, 78 A.D.2d 520, 431 N.Y.S.2d 594 (2d Dep't 1980), fee application allowed after reconciliation
See also
- NY State Bar Op. 747: No contingent fee to collect support arrears
- NY State Bar Op. 1096: Letting a civil rights client keep statutory fees
- NY State Bar Op. 1121: In-house counsel remitting a fee award
Source
- Landing page: https://nysba.org/opinion-739/