Can an Oregon lawyer agree to represent an indigent client at little or no fee, with the client obligated to pay if their finances improve?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer proposes to represent a presently indigent client at a reduced or no-fee basis, but wants the client to be obligated to pay the lawyer if the client's financial circumstances change within a prescribed period and the client is able to pay. The opinion asks whether the lawyer may enter such a fee agreement at the start of the representation.
The opinion concludes yes, qualified. Under Oregon RPC 1.5(a), which bars an illegal or clearly excessive fee, there is no reason to believe the proposed arrangement would violate the rule on the stated facts. The opinion cites Oregon case law on after-the-fact fee modifications without disapproving the arrangement here.
The qualification comes from RPC 1.5(c), which bars a fee in a domestic relations matter that is contingent on securing a divorce or on the amount of spousal or child support or a property settlement, and bars a contingent fee for a criminal defendant. The opinion concludes that if the contemplated change in finances were expected to result from a matter covered by RPC 1.5(c), for example representing the client in a dissolution where the client seeks spousal support, the described fee arrangement would be unethical.
In practice
Under the Oregon rules as they stood at the time of the opinion, RPC 1.5(a) permitted a deferred fee triggered by the client's improved finances, so long as the fee is not clearly excessive. Per the opinion, the arrangement crosses into a prohibited contingent fee under RPC 1.5(c) if the anticipated financial change is a divorce-related support or property award (or a criminal matter).
Common questions
Q: Can a lawyer take an indigent client now and get paid later if the client's finances improve?
A: Yes, qualified. The opinion concludes such an agreement does not, on these facts, violate RPC 1.5(a)'s bar on clearly excessive fees.
Q: When would that arrangement be unethical?
A: When the expected change in finances comes from a matter RPC 1.5(c) bars contingent fees on, such as a dissolution where the client seeks spousal support. The opinion concludes the arrangement would then be unethical.
Q: Does it matter that the agreement is made at the start of the representation?
A: The opinion treats the initial agreement as permissible under RPC 1.5(a), noting that fee agreements made or modified during the relationship are closely scrutinized.
Background and rules framework
The opinion interprets Oregon RPC 1.5(a) (no illegal or clearly excessive fee) and RPC 1.5(c) (bar on contingent fees in specified domestic relations and criminal matters). RPC 1.5 tracks Model Rule 1.5.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.5(a) / Model Rule 1.5 (no clearly excessive fee)
- Oregon RPC 1.5(c) / Model Rule 1.5 (contingent-fee restrictions)
Statutes:
- ORS 20.340 (attorney fees in domestic relations matters)
Cases:
- Eagle Indus., Inc. v. Thompson, 321 Or 398, 900 P2d 475 (1995)
- Sabin v. Terrall, 186 Or 238, 206 P2d 100 (1949)
See also
- OSB Ethics Op. 2005-13: Contingent Fees in Domestic Relations
- OSB Ethics Op. 2005-15: Contingent Fees in Installments
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-45.pdf
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