Can an Oregon lawyer charge a contingent fee in a divorce, support, or cohabitant property case?

Plain-English summary

The opinion addresses four contingent-fee proposals: representing an unmarried woman seeking a division of assets accumulated during a 10-year cohabitation; enforcing an existing spousal or child support order obtained by other counsel; representing a spouse in a dissolution for a fee based on property or support awarded; and adding an interspousal tort claim for a client already represented hourly in a dissolution. The conclusions are no, yes-qualified, no, and yes-qualified.

The opinion applies Oregon RPC 1.5(a) (no illegal or clearly excessive fee) and RPC 1.8(i)(2) (a lawyer may contract for a reasonable contingent fee in a civil case), and identifies the controlling bar in RPC 1.5(c): no contingent fee whose payment or amount is contingent on securing a divorce or on the amount of spousal or child support or a property settlement, and no contingent fee for a criminal defendant. Lawyer C's proposed dissolution contingent fee clearly violates RPC 1.5(c).

The opinion concludes the cohabitant's case (Lawyer A) is barred too, because the dissolution of an unmarried couple's relationship is treated like a domestic relations matter. Lawyer B's contingent fee to enforce an existing support order is proper as long as the fee is reasonable and the lawyer is enforcing an existing order rather than obtaining one in the first instance. Lawyer D may charge a contingent fee on the interspousal tort claim only; even if the matters are joined for trial, two separate fees must be charged, with separate engagement letters, files, and time records.

In practice

The opinion holds that, under the Oregon rules as they stood at the time, the contingent-fee bar in RPC 1.5(c) reaches divorce, support, and property-settlement work, and the opinion extends it to an unmarried cohabitant's property division. The opinion treats enforcing an already-entered support order and a distinct interspousal tort claim as outside the bar, and directs that a permissible contingent matter joined with a barred one be billed and recorded separately.

Common questions

Q: Can an Oregon lawyer take a divorce case on contingency?

A: No. The opinion concludes RPC 1.5(c) bars a fee contingent on securing a divorce or on the amount of support or a property settlement.

Q: Does the bar apply to unmarried partners dividing property?

A: Yes. The opinion concludes the contingent-fee bar applies to an unmarried cohabitant's property division because it is treated like a domestic relations matter.

Q: Is a contingent fee ever allowed in a family-law context?

A: Yes, in limited situations. The opinion concludes a contingent fee is proper to enforce an existing support order and for a separate interspousal tort claim, which must be billed separately even if joined for trial.

Background and rules framework

The opinion interprets Oregon RPC 1.5 (fees), including the reasonableness standard in 1.5(a) and the contingent-fee bar in 1.5(c), with RPC 1.8(i)(2) (reasonable contingent fees in civil cases). These track Model Rules 1.5 and 1.8.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.5(a), (c) / Model Rule 1.5 (fees; contingent-fee bar)
• Oregon RPC 1.8(i)(2) / Model Rule 1.8 (contingent fees in civil cases)

Cases:

• Hay v. Erwin, 244 Or 488, 419 P2d 32 (1966)
• Neely v. Neely, 95 Or App 403, 768 P2d 947 (1989)
• Beal v. Beal, 282 Or 115, 577 P2d 507 (1978)

See also

• NY State Bar Op. 443: Contingent Fee for Past-Due Support
• NY State Bar Op. 880: Prohibition of Contingent Fees in Criminal Matters
• OSB Ethics Op. 2005-15: Contingent Fees Paid in Installments

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-13.pdf