Can a lawyer take a contingent fee to collect a property-division award that was already set in a final divorce decree?

Plain-English summary

A client asked a lawyer to collect $10,000 from his ex-wife, an amount awarded to him in a prior divorce decree as a property division but never paid. The question was whether the lawyer could take the collection case on a contingent fee.

The committee analyzed Rule 1.5(d)(1). That rule first bars a contingent fee in a domestic matter where the fee is contingent on securing a divorce; here the divorce was already secured, so that bar did not apply. Second, it bars a domestic contingent fee contingent on the amount of alimony, support, or property settlement in lieu thereof; here the property award amount was already set and only collection remained, so that bar did not apply either. The committee added a possible second reason the fee is permissible: if the property settlement is not "in lieu of" alimony or support, that portion of Rule 1.5(d)(1) would legitimize the fee, depending on each case's facts. It noted Rule 1.5(d)(1) expressly allows contingent fees for collecting past-due alimony and child support and that the list is not exclusive, the key point being that the prohibited category does not embrace this conduct. The committee addressed Glasscock v. Glasscock, 403 S.E.2d 313 (1991), where the South Carolina Supreme Court stated broadly that a contingency fee is not permissible in a domestic case, but observed that Glasscock involved a divorce not yet obtained when the fee agreement was made and did not expressly rescind Rule 1.5(d)(1). The policy behind barring a contingent fee in a prospective domestic matter, it explained, is to avoid lawyers frustrating South Carolina's policy of encouraging reconciliation, which a lawyer paid contingently to obtain an award requiring divorce or separation could not fulfill; once the parties are already divorced, that policy does not apply. The committee concluded a contingent fee here is consistent with both the language and the policy of Rule 1.5(d), subject to the overall reasonableness requirement of Rule 1.5(a).

Currency note

This opinion was issued in 1992, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer charge a contingent fee to collect a divorce property award?

A: The committee said yes where the award is already set by a final decree and only collection remains, because the fee is not contingent on securing the divorce or on the amount of the settlement under Rule 1.5(d)(1).

Q: Doesn't Glasscock bar contingent fees in domestic cases?

A: The committee read Glasscock narrowly: it involved a divorce not yet obtained at the time of the fee agreement and did not expressly rescind Rule 1.5(d)(1); the reconciliation-policy rationale does not apply once the parties are already divorced.

Q: Is there any remaining limit on the fee?

A: Yes. The committee said the overall fee must still be reasonable under Rule 1.5(a).

Background and rules framework

The opinion applied Rule 1.5(d)(1) (limits on contingent fees in domestic relations matters) and Rule 1.5(a) (reasonableness of fees), corresponding to the like-numbered Model Rule, and distinguished the South Carolina Supreme Court's decision in Glasscock as involving a not-yet-obtained divorce. The analysis turned on the award and divorce already being fixed, leaving only collection.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.5(d)(1) / Model Rule 1.5(d): no contingent fee contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof.
• South Carolina RPC 1.5(a) / Model Rule 1.5(a): a fee must be reasonable.

Cases:

• Glasscock v. Glasscock, 403 S.E.2d 313 (S.C. 1991), distinguished as involving a divorce not yet obtained when the fee agreement was made.

See also

• SC Bar Ethics Op. 12-02: A Contingent Fee Paid as Land in a Quiet-Title Case
• SC Bar Ethics Op. 92-14: Advancing Collection Costs for a Lender Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-92-05/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 92-05

Attorneys has been asked by a client to represent him to collect funds in the amount of $10,000.00 from his ex-wife. The funds were awarded to the client in a prior Decree of Divorce, but he has never received the money.

Question:
May an attorney take a case on a contingent fee basis to collect funds due under a property division previously ordered in a decree of divorce?

Summary:
A contingent fee is appropriate in this case because the payment of the fee is not contingent upon the obtaining of the divorce or the original award of the specific amount of the property division. The over-all fee must still be reasonable as set out in Rule 1.5(a).

Opinion:
Rule 1.5 (d) (1) of the Rules of Professional Conduct first prohibits contingent fees in a domestic relations matter if the fee is contingent upon the securing of a divorce. In this case, the divorce has already been secured, so this prohibition is not relevant.

Second, Rule 1.5 (d) (1) prohibits a domestic relations contingent fee if the fee "is contingent upon... the amount of alimony or support, or property settlement in lieu thereof..." In this case, the amount of the property award has already been set. Only the collection has yet to occur, so this prohibition is not relevant.

There may be a possible second reason why the contingent fee is legal. If the property settlement is not "in lieu of" alimony or support, this portion of Rule 1.5 (d) (1) would legitimize the fee. This depends on the unique facts of each case.

Rule 1.5 (d) (1) specifically states that a contingency fee is proper in collecting past due alimony and child support, but this list does not purport to be an exclusive list. The significant point is that the category of prohibited conduct does not embrace that discussed herein.

In Glasscock v. Glasscock, 403 S.E. 2d 313 (1991) the S.C. Supreme Court stated broadly that a contingency fee is not permissible in a domestic case. However, Glasscock involved a divorce which had not been obtained at the time of the relevant fee agreement. While the language in Glasscock is broad, the Court did not expressly rescind the language of Rule 1.5 (d) (1). The policy reason for prohibiting a contingent fee in a prospective domestic relations matter is to prevent the attorneys from frustrating the stated policy of South Carolina law to encourage reconciliation. A lawyer cannot fulfill this duty if he is paid a contingent fee to obtain an award which requires a divorce or separation as a prerequisite. Once the parties are already divorced, the above policy reason is inapplicable. Thus a contingent fee in this case is consistent with both the language of Rule 1.5 (d) and the policy reason behind the rule.