May an attorney represent an indigent wife on a contingent fee to collect long-overdue alimony arrearages already fixed by a court order?

Plain-English summary

The committee considered whether an attorney could represent a wife on a contingency basis in a suit to obtain alimony arrearages. The alimony amount had been fixed previously by court order, the arrearages had continued for seven years, and the wife was otherwise indigent. On those facts, the committee concluded the contingent-fee arrangement would not be improper, citing DR 2-105(C) and EC 2-22.

Currency note

This opinion was issued in 1981, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.5(d)(1) and Comment [3a] now codify the circumstances in which lawyers may handle family law matters on a contingent fee basis. 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 Treat this page as historical context, not current guidance.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: Could a contingent fee be charged to collect overdue alimony?

A: Under this 1981 opinion, yes, on the stated facts: the alimony had already been fixed by court order, the arrearages had run for seven years, and the wife was otherwise indigent.

Q: Why did the committee permit a contingent fee here when it barred one on a property settlement in LEO 423?

A: The opinion turns on the facts it recites: a fixed, court-ordered alimony amount in arrears for seven years for an indigent client, as opposed to a percentage of a lump-sum property settlement. The committee cited DR 2-105(C) for this scenario.

Background and rules framework

The opinion applied the former Code's fee provision DR 2-105(C) and the aspirational EC 2-22 to a contingent-fee arrangement for collecting court-ordered alimony arrearages. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and Comment [3a], corresponding to ABA Model Rule 1.5 on fees and the limits on contingent fees in domestic relations matters.

Citations and references

Rules of Professional Conduct:

• DR 2-105(C) (contingent fees) (former Code)
• EC 2-22 (former Code)
• Virginia Rule 1.5(d)(1) and Comment [3a] (contingent fees in family law matters) (cited in the committee note)
• ABA Model Rule 1.5 (fees)

See also

• VA LEO 423: No Contingent Fee on a Property Settlement
• VA LEO 568: Contingent Fee for a Military Retirement Pay Claim Improper
• VA LEO 588: Contingent Fee for a Child Support Arrearage
• VA LEO 667: Four-Factor Test for Contingent Fees on Child Support Arrearages

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0405.pdf

Original opinion text

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

LEGAL ETHICS OPINION 405

DOMESTIC RELATIONS – CONTINGENT FEE

It would not be improper for an attorney to represent a wife in a suit to obtain alimony arrearages on a contingency basis for the amount of alimony that has been fixed previously by court order when the arrearages have continued for a period of seven years and the wife is otherwise indigent. [See II: DR:2-105(C) and EC:2-22.]

Committee Opinion
April 6, 1981

Legal Ethics Committee Notes. – Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matters on a contingent fee basis.