Can a lawyer charge a contingent fee in a divorce case, tied to securing the divorce and to the property or alimony obtained?

Plain-English summary

A disciplinary proceeding had incidentally involved a contract between a lawyer and his client making the attorney's fee contingent on success in securing a divorce decree, with the amount tied to the value of property and money the client received in the adjustment of property rights and as temporary and permanent alimony. The Board was orally asked about the propriety of contingent-fee contracts in divorce cases.

The Board of Governors reached three conclusions. First, such a contract involves public policy: the proper maintenance of the marriage relation is a matter of public concern, and the contract is against public policy and void, given the sanctity of the marriage relation, the welfare of children, the good order of society, and the regard for virtue that the law protects. Second, entering such a contract gives the lawyer a personal interest in preventing a reconciliation between the parties, which the law favors and public policy encourages. Third, a suit for divorce and the incidental adjustment of property rights is not a "cause of action or claim" arising ex contractu or ex delicto within Section 4101, C.O.S. 1921, but a proceeding to dissolve a status in which the public has an interest and to which the state is an implied party, the property adjustment being merely incidental.

Currency note

This opinion was issued in 1932, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The statute cited here, Section 4101 of C.O.S. 1921, belongs to that era. The prohibition on contingent fees in domestic-relations matters has counterparts in the modern rules; verify the current Oklahoma rule before relying on the specifics. Treat this page as historical context, not current guidance.

Common questions

Q: Could a lawyer take a divorce case on a contingent fee in 1932?

A: The Board concluded no. It held such contracts void as against public policy because they give the lawyer an interest in preventing reconciliation and because divorce is not a "cause of action" within the contingent-fee statute.

Q: Why did public policy bar the arrangement?

A: The Board reasoned that the marriage relation, the welfare of children, and the good order of society are matters of public concern, and a fee contingent on divorce works against the reconciliation the law favors.

Q: Did the contingent-fee statute apply to divorce suits?

A: No. The Board held a divorce suit is a proceeding to dissolve a status in which the state is an implied party, not a "cause of action" ex contractu or ex delicto under Section 4101, with the property adjustment merely incidental.

Background and rules framework

The opinion construed Section 4101, C.O.S. 1921, the contingent-fee statute, and concluded it does not reach divorce proceedings, which dissolve a status rather than resolve a "cause of action." The Board grounded the prohibition in public policy protecting the marriage relation and disfavoring arrangements that discourage reconciliation. The analysis is consistent with the era's treatment of contingent fees under the ABA Canons of Professional Ethics.

Citations and references

Statutes:

• Section 4101, C.O.S. 1921 (5 Okl. St. Ann. § 7): the contingent-fee statute; held not to reach divorce proceedings.

See also

• Okla. Bar Ethics Op. 26: Deducting Costs Before Dividing a Fifty-Percent Contingent Fee
• ABA Formal Op. 94-389: Contingent Fees
• ABA Formal Op. 93-373: Reverse Contingent Fees

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-41/

Original opinion text

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

Adopted November 25, 1932

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.