Can a lawyer take a contingent fee to collect overdue child support when the client cannot afford a retainer?

Plain-English summary

The committee considered an attorney who proposed to represent a client on a contingent fee basis to collect a child support arrearage. A 1971 divorce decree had incorporated a child support agreement; both the client and her former spouse had remarried; the children of the marriage were then 17 and 18, with one visiting the former spouse frequently and the other infrequently; the arrearage was $50,000; and the client could not pay even a modest retainer.

The committee concluded that the contingent fee was not improper, provided that the relationship between the former spouse and the children would not be undermined, that no other fee arrangement was practical, and that the agreed fee basis was fair and reasonable under the circumstances. It cited Formal LE Op. 189 and LE Op. 405.

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 Treat this page as historical context, not current guidance.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 contingent fee ever be used to collect child support owed?

A: Under this 1984 opinion, yes; on the facts presented the committee found a contingent fee to collect a $50,000 arrearage not improper, subject to its stated conditions.

Q: What conditions did the committee attach?

A: The fee was permissible provided the relationship between the former spouse and the children would not be undermined, no other fee arrangement was practical, and the agreed fee was fair and reasonable under the circumstances.

Q: Did the client's inability to pay matter?

A: Yes. The committee emphasized that the client was unable to pay even a modest retainer and that no other fee arrangement was practical.

Background and rules framework

The opinion applies the former Code's limits on contingent fees in domestic relations matters to the collection of a past-due child support obligation. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and its Comment [3a], corresponding to ABA Model Rule 1.5, which restricts contingent fees in domestic relations matters.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 1.5(d)(1) and Comment [3a] (contingent fees in domestic relations) (cited in the committee note)
• ABA Model Rule 1.5 (fees; contingent fees)

Other opinions cited:

• Virginia Formal LE Op. 189
• Virginia LE Op. 405

See also

• 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
• VA LEO 850: Applying the LE Op. 667 Factors to a Support Arrearage

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0588.pdf

Original opinion text

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

LEGAL ETHICS OPINION 588

CONTINGENT FEES – DOMESTIC RELATIONS

It is not improper for an attorney to represent a client on a contingent fee basis for the collection of child support arrearage when the 1971 divorce decree incorporated a child support agreement, both the client and her former spouse have remarried, the children of the marriage are now 17 and 18 years of age, one child visits frequently with the former spouse, the other child visits infrequently, the arrearage amounts to $50,000.00, and the Client is unable to pay even a modest retainer fee, provided the relationship between the former spouse and the children will not be undermined, no other fee arrangement is practical and the agreed upon fee basis is fair and reasonable under the circumstances. [Formal LE Op. 189, LE Op. 405]

Committee Opinion
October 23, 1984

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.