May a lawyer charge a contingent fee in a divorce case, tied to obtaining the decree or to the property and alimony the client recovers?

Plain-English summary

Opinion 299 readopted Advisory Opinion 41, originally promulgated November 25, 1932. The question, raised orally out of a disciplinary proceeding, was whether a lawyer may take a contingent fee in a divorce case, where the fee was made contingent on securing the decree and the amount keyed to the value of property and alimony the client received.

The Board concluded that such a contract is void. It gave three reasons. First, the contract implicates public policy: the proper maintenance of the marriage relation is a matter of public concern, and the sanctity of the marriage relation, the welfare of the children, the good order of society, and the regard for virtue all support declaring such a contract void as against public policy. Second, the contract gives the lawyer a personal interest in preventing a reconciliation between the parties, which the law favors and public policy encourages. Third, the Board reasoned that a divorce suit and the incident adjustment of property rights is not a "cause of action or claim" arising ex contractu or ex delicto within the contingent-fee statute (Sec. 4101, C.O.S. 1921; 5 Okl. St. Ann. § 7), but a proceeding to dissolve a status in which the public has an interest and to which the state is an implied party, with the property adjustment merely incidental.

Currency note

This opinion (readopting a 1932 opinion) issued in 1981 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The prohibition on contingent fees in domestic-relations matters was later carried into the Model Rules framework (compare Model Rule 1.5(d)(1) and the Oklahoma equivalent). Treat this page as historical context, not current guidance.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 divorce lawyer in Oklahoma charge a contingent fee?

A: No. The Board concluded that a contingent fee contract in a divorce case is against public policy and void.

Q: Why is a contingent fee improper in a divorce?

A: The Board reasoned it gives the lawyer a personal interest in preventing reconciliation, and that a divorce is a proceeding to dissolve a status in which the public has an interest, not the kind of "cause of action or claim" the contingent-fee statute covers.

Background and rules framework

The opinion rested on public policy and on the contingent-fee statute (Sec. 4101, C.O.S. 1921; 5 Okl. St. Ann. § 7), holding the statute inapplicable to a divorce proceeding. It readopted Advisory Opinion 41 (1932) and predates both the Code of Professional Responsibility's later codification and the Model Rules; it made no Model Rule citation.

Citations and references

Statutes:

• Sec. 4101, C.O.S. 1921; 5 Okl. St. Ann. § 7 (Oklahoma contingent-fee statute).

Other opinions cited:

• OBA Advisory Opinion 41 (Nov. 25, 1932), readopted by this opinion.

See also

• Okla. Bar Ethics Op. 41: Contingent fee in divorce cases void against public policy
• ABA Formal Op. 94-389: Contingent fees
• Alabama Ethics Op. 1996-01: A lawyer may not charge a contingent fee in domestic-relations cases

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-299/

Original opinion text

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

Adopted September 18, 1981

(Readopting Advisory Opinion No. 41 Promulgated November 25, 1932)

OPINION

In a recent disciplinary proceeding there was incidentally involved a contract between a member of the bar and his client wherein the attorney’s fee was made contingent upon success in securing a decree of divorce for his client, and the amount thereof, upon the value of property and money received by the client in the adjustment of property rights and as alimony, temporary and permanent.

Orally an opinion was requested as to the propriety of contingent fee contracts in divorce cases.

It is the opinion of the Board:

1. That such a contract involves a matter of public policy; that the proper maintenance of the marriage relation is a matter of public concern; that such a contract between a member of the bar and a client is against public policy and void, the sanctity of the marriage relation, the welfare of the children, the good order of society, the regard for virtue, all of which the law seeks to foster and protect, being ample reasons for declaring such contract to be void as against public policy.

2. That the entering into such a contract involves the personal interest of the member of the bar in preventing a reconciliation between the parties—a thing which the law favors and public policy encourages.

3. That a suit for divorce and for the adjustment of property rights incident thereto is not a “cause of action or claim” arising “ex contractu” or “ex delicto” within the meaning of Sec. 4101, C.O.S.1921, 5 Okl. St. Ann. § 7, but is a proceeding for the dissolution of a status in which the public has an interest and to which the state is an implied party, the adjustment of property rights being merely incidental to the dissolution of the status and not the subject matter of the proceeding.