Can a lawyer charge a contingent fee to non-spouse parties pulled into a divorce case over whether titled property is marital?

Plain-English summary

A husband had conveyed a house and lot to his parents in 1984. In a later contested separation hearing, the wife claimed that property, though titled in the parents' names, was marital property, and the trial judge ruled she had not proven the claim. In a 1993 action to reduce alimony, the judge allowed the wife to pursue the claim again, ordered the parents joined as parties, and set the question for litigation. The parents wanted to hire an attorney on a contingent fee, and the question was whether that violated Rule 1.5(d)(1).

The committee concluded it did not. Rule 1.5(d)(1) forbids any fee in a domestic relations matter that is contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof. The relief the parents sought as third-party litigants, a determination that property titled in their name was non-marital, fell outside that proscription. The attorney could therefore accept the parents' contingent-fee proposal without violating the rule.

Currency note

This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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 ever charge a contingent fee in a domestic relations case?

A: Not for the relief Rule 1.5(d)(1) names. The committee read the rule to bar a fee contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof.

Q: Why was a contingent fee allowed here?

A: Because the clients were the husband's parents, third-party litigants, and the relief they sought, a ruling that property titled in their name was non-marital, was not divorce, alimony, support, or a property settlement, so it fell outside the rule.

Background and rules framework

The opinion applied Rule 1.5(d)(1) (fees), which corresponds to like-numbered Model Rule 1.5(d)(1). The rule prohibits a fee contingent on securing a divorce or on the amount of alimony, support, or property settlement in lieu thereof.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.5(d)(1) / Model Rule 1.5(d)(1): a lawyer shall not charge a fee in a domestic relations matter contingent on securing a divorce or on the amount of alimony, support, or property settlement.

See also

• SC Bar Ethics Op. 93-12: Keeping a Non-Refundable Retainer
• SC Bar Ethics Op. 93-34: Fees on a Subrogated Recovery
• SC Bar Ethics Op. 02-07: Refunding a Third-Party-Paid Fee

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-13/

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 93-13

In 1984, Husband conveyed a house and lot to his parents. In Husband's and Wife's contested separation hearing in 1990, Wife claimed that this house and lot, though titled in Parents' names, was Husband and Wife's marital property. The trial judge ruled that wife failed to prove her claim and this property was not marital property.

In Husband's action to reduce alimony hearing in 1993, the trial judge allowed Wife to again pursue her claim that Parents' house was marital property. The trial judge ruled that Parents are to be included as parties and the question will now be litigated.

Parents wish to hire attorney to represent their interest in this matter, and Parents have proposed a fee which would be contingent upon the outcome of the case.

Question:
Would accepting representation of Parents on this basis be a violation of Rule 1.5(d)(1) of the Rules of Professional Conduct?

Summary:
The relief sought by Parents does not fall within the type relief set forth in Rule 1.5(d)(1); therefore, a contingency fee arrangement between attorney and Parents would not be in violation of this Rule.

Opinion:
Rule 1.5(d)(1) proscribes any fee arrangement in domestic relations matters which is contingent upon the securing of "a divorce or upon the amount of alimony or support, or property settlement in lieu thereof." The relief sought by the parents as third party litigants, a determination that property titled in their name is non-marital property, does not fall within the proscription of Rule 1.5(d)(1). Therefore, attorney may accept the contingency fee proposal of parents without violating his Rule.