NYSBA 2001-11-05

Can a lawyer take a contingent fee to collect unpaid alimony, maintenance, or child support owed under a divorce judgment that has already been entered?

Short answer: The opinion concluded that a lawyer may not charge a contingent fee in a post-divorce action to collect maintenance, child support, or alimony due under a final judgment, because the Code treats such a collection action as a domestic relations matter in which DR 2-106(C)(2) bars contingent fees; this overruled N.Y. State 443 and modified N.Y. State 690.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 747: No contingent fee to collect support arrears

Short answer: A lawyer may not charge a contingent fee in a post-divorce action to collect maintenance, child support, or alimony owed under a final judgment, because the Code treats that collection action as a domestic relations matter in which contingent fees are barred.

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.

View original opinion

Plain-English summary

The committee revisited whether a lawyer may charge a contingent fee in a "matrimonial collection action," a post-divorce action to collect past-due maintenance, child support, or alimony fixed by a final judgment. In N.Y. State 443 (1976), the committee had found nothing improper in such an arrangement, distinguishing actions affecting marital status (the focus of EC 2-20's caution that contingent fees in domestic relations cases are rarely justified) from suits solely to collect past-due support.

The committee concluded that intervening amendments to the Code required a different answer. DR 2-106(C)(2)(a) bars a lawyer from entering into a contingent fee arrangement in a "domestic relations matter," and the Code's Definition 10 defines that term to include actions to enforce or collect on a judgment for maintenance, child support, or alimony. Because a matrimonial collection action falls within that defined term, the committee held the contingent-fee bar applies regardless of whether the underlying amounts are already fixed by judgment. It overruled N.Y. State 443 and modified N.Y. State 690 to the extent they were inconsistent.

The committee added two qualifications in footnotes. It noted that Model Rule 1.5 is worded differently and, lacking the Code's defined term, does not literally prohibit a contingent fee in a matrimonial collection action. And it observed that Domestic Relations Law sections 237(c) and 238, which can shift the delinquent spouse's payment of the other spouse's attorney's fees, may limit the circumstances in which a contingent fee would be needed to obtain counsel.

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: Could a lawyer take a contingent fee to collect support arrears already fixed by a divorce judgment?

A: No. The opinion concluded that a matrimonial collection action is a domestic relations matter under the Code's Definition 10, so DR 2-106(C)(2) bars a contingent fee even though the amounts owed are already set.

Q: Didn't an earlier opinion allow this?

A: Yes, and the committee overruled it. N.Y. State 443 (1976) had permitted such fees, but the committee held intervening Code amendments required the opposite result and modified N.Y. State 690 to match.

Q: Did the committee say the Model Rules reach the same result?

A: No. The opinion noted in a footnote that Model Rule 1.5, which lacks the Code's defined "domestic relations matter," does not literally prohibit a contingent fee in a matrimonial collection action.

Background and rules framework

The opinion interpreted New York's former Code of Professional Responsibility: DR 2-106(B) (reasonableness of fees), DR 2-106(C)(2) (the bar on contingent fees in domestic relations matters), and DR 2-106(D) (the writing required for a contingent fee), along with EC 2-1, EC 2-20, and the Code's Definition 10. The Model Rule analogues are Rule 1.5(d) (no contingent fee in a domestic relations matter contingent on securing a divorce or on the amount of support) and Rule 1.5 (fees). New York replaced this Code with the Rules of Professional Conduct in 2009; the DR and EC 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)
NY DR 2-106(B), DR 2-106(C)(2), DR 2-106(D)

Statutes:

N.Y. Domestic Relations Law sections 237(c) and 238 (shifting payment of the other spouse's attorney's fees)

Other opinions cited:

N.Y. State 443 (1976): overruled; had allowed a contingent fee to collect past-due support
N.Y. State 690: modified to the extent inconsistent

Source

Landing page: https://nysba.org/opinion-747/