Can a Tennessee lawyer accept a contingent fee in a domestic relations case?

Currency note

The Board of Professional Responsibility vacated this opinion on September 11, 2015 due to changes in the law or rules. It was also issued in 1982, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

The Board was asked about the propriety of an attorney accepting employment in a domestic relations matter on a contingent fee basis.

The opinion observed that attorney fee matters are contractual in nature and usually matters of law rather than ethics, citing Ligon v. Ligon, 597 S.W.2d 310, and that the Code's mandatory provisions address only whether a fee is excessive, illegal, or improperly divided, without separately regulating the inquiry presented. It turned instead to the Code's aspirational Ethical Considerations, adopting Ethical Consideration 2-20's guidance: although a lawyer generally should decline contingent-fee employment from a client able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where the particular circumstances of a case justify it, to enter a contingent fee arrangement in a civil case with a fully informed client who wants that arrangement; but because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relations cases are rarely justified.

The opinion concluded that accepting a contingent fee in a domestic relations case will not, standing alone, warrant disciplinary sanctions, but that if an investigation of a complaint arising from such a case reveals other misconduct by the lawyer toward the client, the existence of the questionable fee arrangement may be considered on questions of intent and deliberate misconduct.

Common questions

Q: Is a contingent fee in a divorce case automatically improper in Tennessee?

A: Not standing alone. The opinion holds "the acceptance of a contingent fee in a domestic relations case will not, standing alone, warrant disciplinary sanctions."

Q: Are contingent fees generally favored in domestic relations matters?

A: No. Adopting EC 2-20, the opinion states "contingent fee arrangements in domestic relation cases are rarely justified" because of "the human relationships involved and the unique character of the proceedings."

Q: Can a questionable contingent-fee arrangement still matter in a disciplinary case?

A: Yes, as evidence. The opinion holds that "if investigation of a complaint arising out of such a case indicates other misconduct on the part of a lawyer toward his client, the existence of such a questionable arrangement may be considered on questions of intent and deliberate misconduct."

Background and rules framework

The opinion applied Ethical Consideration 2-20 of the Tennessee Code of Professional Responsibility on contingent fee arrangements, noting the Code's mandatory Disciplinary Rules on fees address only excessiveness, illegality, and improper fee division. The modern correlate is Model Rule 1.5 (fees), noted here as a navigational cross-reference; this vacated opinion should not be relied on for the current standard.

Citations and references

Rules of Professional Conduct:

• EC 2-20 (contingent fee arrangements), Tennessee Code of Professional Responsibility
• Model Rule 1.5 (fees), modern correlate

Cases:

• Ligon v. Ligon, 597 S.W.2d 310, attorney fee matters are generally contractual, not ethical, questions

See also

• Tennessee Op. 94-F-134: Loan to an Adverse Party and Contingent Fee for Child Support
• AL Ethics Op. 1996-01: No Contingent Fees in Divorce

Source

• Landing page: https://www.tbpr.org/ethic_opinions/82-f-26

Original opinion text

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

82-F-26 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 82-F-26

Inquiry has been made concerning the propriety of an attorney accepting employment in a domestic relations matter on a contingent fee basis.

Matters relating to attorney fees are contractual in nature and usually matters of law and not ethics. See Ligon v. Ligon, 597 S.W.2d 310.

The mandatory provisions of the Code of Professional Responsibility are addressed to whether or not the fee is excessive, illegal, or improperly divided with another and offer no regulations regarding the inquiry.

Ethics Considerations of the Code of Professional Responsibility state the aspirational objectives toward which attorneys should strive and state principles upon which the attorney can rely for guidance. Ethical Consideration 2-20 gives guidance and states objectives in the matter under inquiry, which is adopted in this opinion, as follows:

... Although a lawyer generally should decline to accept employment on a contingent fee basis by one who is able to pay a reasonable fixed fee, it is not necessarily improper for a lawyer, where justified by the particular circumstances of a case, to enter into a contingent fee contract in a civil case with any client who, after being fully informed of all relevant factors, desires that arrangement. Because of the human relationships involved and the unique character of the proceedings, contingent fee arrangements in domestic relation cases are rarely justified.

Accordingly, the acceptance of a contingent fee in a domestic relations case will not, standing alone, warrant disciplinary sanctions. However, if investigation of a complaint arising out of such a case indicates other misconduct on the part of a lawyer toward his client, the existence of such a questionable arrangement may be considered on questions of intent and deliberate misconduct.

This 22nd day of February , 1982.

ETHICS COMMITTEE:

W. H. Lassiter, Chairman

W. J. Flippin

George Morrow

APPROVED AND ADOPTED BY THE BOARD