Can a lawyer take a contingent fee to pursue a divorced spouse's claim to the other spouse's military retirement pay?
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This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current Virginia Rules of Professional Conduct, with citations.
Plain-English summary
The committee considered whether an attorney could pursue a divorced spouse's claim against her former husband's military retirement pay on a contingent fee basis. It concluded that, in the absence of special circumstances, doing so is improper, citing EC 2-22 and LE Op. 189.
Currency note
This opinion was issued in 1984, 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 records that current Rule 1.5(d)(1) and Comment [3a] 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 Treat this page as historical context, not current guidance.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: Can a lawyer use a contingent fee in a divorce-related military pension claim?
A: Under this 1984 opinion, not absent special circumstances; the committee found a contingent fee improper for a divorced spouse's claim to the husband's military retirement pay.
Q: Was the bar absolute?
A: No. The committee framed the conclusion as the rule "in the absence of special circumstances," leaving room for exceptions on different facts.
Background and rules framework
The opinion applies the former Code's limits on contingent fees in domestic relations matters, anchored in EC 2-22, to a claim on a spouse's military retirement pay. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and Comment [3a], corresponding to ABA Model Rule 1.5, which restricts contingent fees in domestic relations matters.
Citations and references
Rules of Professional Conduct:
- EC 2-22 (former Code; contingent fees in domestic relations)
- Virginia Rule 1.5(d)(1) and Comment [3a] (cited in the committee note)
- ABA Model Rule 1.5 (fees; contingent fees)
Other opinions cited:
- Virginia LE Op. 189
See also
- VA LEO 588: Contingent Fee to Collect Child Support Arrearage
- VA LEO 667: A Four-Factor Test for Contingent Fees to Collect Child Support
- VA LEO 778: Contingent Fee Improper for a Young Child's Support
Source
- Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
- Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0568.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LEGAL ETHICS OPINION 568
CONTINGENT FEE – DOMESTIC RELATIONS.
In the absence of special circumstances, it is improper for an attorney to represent a divorced spouse's claim against her husband's military retirement pay on a contingent fee basis. [ EC:2-22; LE Op 189]
Committee Opinion
June 18, 1984
Legal Ethics Committee Notes. – Rule 1.5(d)(1) and Comment [3a] codify the circumstances in which lawyers may handle family law matter on a contingent fee basis.
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