Can a Washington lawyer charge a contingent fee in a post-dissolution proceeding?

Plain-English summary

A lawyer asked whether he could represent a client in a post-dissolution proceeding on a contingent fee basis. The committee looked to RPC 1.5, which provides that a lawyer may not charge a contingent fee in a domestic relations matter based upon securing a dissolution or annulment of marriage, or upon the amount of maintenance or support or property settlement in lieu of it, except in post-dissolution proceedings.

The committee was of the opinion that the rule would not prevent a contingent fee in a post-dissolution matter, with one qualification: it would bar the fee if the fee were based upon the negotiating or litigation of new maintenance or child support, or upon the inclusion of property in lieu of support or maintenance in an action to divide previously undivided property. Where the lawyer was unsure whether those problems would arise, the committee said he would have to either refrain from the arrangement or make specific exceptions in a written contingent fee agreement.

Currency note

This opinion was issued in 1991, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Are contingent fees ever allowed in a Washington domestic relations matter?

A: The committee read RPC 1.5 to bar contingent fees based on securing a dissolution or annulment, or on the amount of maintenance, support, or property settlement, with an exception for post-dissolution proceedings.

Q: Could the lawyer use a contingent fee in this post-dissolution proceeding?

A: The committee was of the opinion that he could, unless the fee was based on negotiating or litigating new maintenance or child support, or on including property in lieu of support in an action to divide previously undivided property.

Q: What if the lawyer was unsure whether those problem areas would come up?

A: The committee said he would have to either refrain from the contingent arrangement or make specific exceptions in a written contingent fee agreement.

Background and rules framework

The opinion applied RPC 1.5, Washington's fee rule, which corresponds to ABA Model Rule 1.5 and includes the prohibition on contingent fees in certain domestic relations matters. The committee's analysis turned on the rule's express exception for post-dissolution proceedings and on whether a proposed fee would nonetheless rest on new maintenance, support, or property division.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees; limits on contingent fees in domestic relations matters)
• Washington RPC 1.5(d)

See also

• ABA Formal Op. 94-389: Contingent Fees
• ABA Formal Op. 93-373: Reverse Contingent Fees

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=499

Original opinion text

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

Advisory Opinion: 1419
Year Issued: 1991
RPC(s): RPC 1.5(d)
Subject: Contingent fee in post-dissolution proceeding

The Committee reviewed your inquiry concerning potential representation of a client in a post-dissolution proceeding on a contingent fee basis. RPC 1.5 provides that a lawyer may not charge a contingent fee in any domestic relations matter based upon the securing of a dissolution or annulment of marriage or upon the amount of maintenance or support, or property settlement in lieu therefore (except in post-dissolution proceedings). The Committee was of the opinion that this rule would not prevent you from charging a contingent fee in a post-dissolution matter unless it were based upon the negotiating or litigation of new maintenance or child support, or inclusion of property in lieu of support or maintenance in actions to divide previously undivided property. If you are not sure as to whether those problems would arise, the Committee was of the opinion that you would either have to refrain from the arrangement or possibly make specific exceptions in a written contingent fee agreement.