Can I collect a one-third contingent fee from a client who won't cooperate with collection, when I never put the contingent-fee agreement in writing?

Plain-English summary

The inquiring attorney represents a client in a variety of legal matters, and the client has questioned the attorney's ability in each case. During the representation, the attorney informed the client that advanced fees are necessary to carry out proper representation of these matters, and the client responded with more accusations. The attorney asked whether it is ethical to bill a client for a one-third attorney fee when the client refuses to cooperate with the collection process.

The panel said Rule 1.5(c) ("Fees") governs. It quoted the rule: a fee may be contingent on the outcome of the matter except where a contingent fee is prohibited by paragraph (d) or other law; a contingent fee agreement should be in writing and should state the method by which the fee is determined, including the percentages that accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are deducted before or after the contingent fee is calculated.

The panel concluded that, in order for an attorney to collect a contingency fee from a client, the attorney should have set forth the agreement in writing for the client as the cited paragraph states. The panel added that the attorney should suggest to the client that the fee arbitration program established by the Rhode Island Bar Association may provide a means for resolving the matter.

In practice

Under this opinion, an attorney seeking to collect a one-third contingent fee needs a written contingent-fee agreement meeting Rule 1.5(c)'s content requirements; the panel framed the writing as what the attorney "should have" done to collect the fee. For the underlying dispute with an uncooperative client, the opinion directs the attorney to suggest the Rhode Island Bar Association's fee arbitration program.

Common questions

Q: Can I collect a contingent fee without a written agreement?

A: Per the opinion, to collect a contingency fee the attorney should have set the agreement forth in writing, as Rule 1.5(c) states.

Q: What must a contingent-fee agreement contain?

A: Per the opinion, it should state the method by which the fee is determined, including the percentages accruing in the event of settlement, trial, or appeal, the litigation and other expenses deducted from the recovery, and whether those expenses are deducted before or after the fee is calculated.

Q: How should I handle the dispute with the uncooperative client?

A: Per the opinion, the attorney should suggest the Rhode Island Bar Association's fee arbitration program as a means for resolving the matter.

Background and rules framework

The opinion applies Rhode Island Rule 1.5(c) (contingent fees), corresponding to Model Rule 1.5(c). The panel quoted the rule's writing requirement and its list of terms a contingent-fee agreement should state, and applied it to a lawyer trying to collect a one-third fee, concluding the agreement should have been reduced to writing and pointing the parties to bar-sponsored fee arbitration.

Citations and references

Rules of Professional Conduct:

• MR 1.5(c) (contingent fees)
• RI RPC 1.5(c)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-73: A Percentage Fee for Estate Work Must Still Be Reasonable
• RI EAP Op. 91-78: Contingent Fee Proper for Support Arrears, Not Increases
• RI EAP Op. 92-02: Contingent Fee for Overdue Support and Client Loans

Currency note

This opinion was issued in 1992 (Opinion 92-85, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.5 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.5 (fees), including tightening the contingent-fee writing and signature requirements. 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-85.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-85, Request #313
Issued November 18, 1992

An attorney seeks Panel advice regarding the following set of circumstances. The attorney represents a client with regard to a variety of legal matters. The attorney informs the Panel that the client has questioned the attorney's ability in each case. During the representation, the attorney informed the client that advanced fees are necessary in order to carry out the proper representation of these legal matters. At this point, the client responded with more accusations. The attorney asks whether it is ethical to bill a client for one-third attorney fee when the client refuses to cooperate with the collection process.

The Panel believes that Rule 1.5(c) entitled "Fees" governs this inquiry. The Rule states that:

A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement should be in writing and should state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

It is the Panel's belief that in order for an attorney to collect a contingency fee from a client, that the attorney should have set forth this agreement in writing for the client as stated in the above cited paragraph. The attorney should suggest to the client that the fee arbitration program established by the Rhode Island Bar Association may provide a means for resolving this matter.