Can a Washington lawyer charge a contingent fee to divide property of two people who lived together but were never married?

Plain-English summary

The inquirer asked whether a dispute over the division of property acquired by parties who are not married, and who were not married while the property was acquired, could be handled under a contingent fee agreement. The inquiry expressed concern about greed within the bar and about a lawyer being reluctant to settle a case when the lawyer's compensation depends on the result.

The committee concluded that RPC 1.5(d) does not prohibit a contingent fee agreement in the situation described. On the concern about a contingent-fee lawyer's incentives, the committee pointed to several existing rule constraints: RPC 1.5(a) requires fees to be reasonable; RPC 1.5(a)(8) requires a reasonable and fair disclosure of the material elements of the fee agreement; RPC 1.5(c)(1) requires contingent fee agreements to be in writing; RPC 1.4 requires the lawyer to keep the client sufficiently informed to make informed decisions; and RPC 1.2(a) requires the lawyer to abide by the client's decisions about the objectives of the representation, including whether to accept a settlement offer. The committee stated that the opinion explained its earlier Informal Opinion 1732 more fully.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Does Washington's ban on contingent fees in domestic relations matters reach a dispute between unmarried partners?

A: The committee concluded that RPC 1.5(d) does not prohibit a contingent fee where the parties were never married and were not married while the property was acquired.

Q: What rules still constrained a contingent fee in this setting?

A: The committee pointed to RPC 1.5(a) (reasonable fees), RPC 1.5(a)(8) (disclosure of the material fee terms), RPC 1.5(c)(1) (the fee agreement must be in writing), RPC 1.4 (keeping the client informed), and RPC 1.2(a) (abiding by the client's decisions).

Q: Did the committee address the worry that a contingent fee discourages settlement?

A: It answered the concern by citing RPC 1.2(a), under which the lawyer must abide by the client's decision whether to accept a settlement offer.

Background and rules framework

The opinion turned on Washington RPC 1.5 (fees), corresponding to ABA Model Rule 1.5. RPC 1.5(d) restricts contingent fees in certain matters, including domestic relations matters; the committee read it not to reach a property dispute between parties who were never married. The committee also cited RPC 1.4 (communication, ABA Model Rule 1.4) and RPC 1.2(a) (scope and a client's decisions, ABA Model Rule 1.2).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees); Washington RPC 1.5(a), 1.5(a)(8), 1.5(c)(1), 1.5(d)
• ABA Model Rule 1.4 (communication); Washington RPC 1.4
• ABA Model Rule 1.2 (scope of representation; client decisions); Washington RPC 1.2(a)

Other opinions cited:

• WSBA Informal Opinion 1732: the earlier opinion this opinion explains.

See also

• WSBA Ethics Op. 1074: Contingent Fee, Domestic Split
• WA Ethics Op. 1025: Contingent Fee, Forfeiture
• ABA Formal Op. 94-389: Contingent Fees
• AL Ethics Op. 1996-01: Contingent Fees in Divorce

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1094

Original opinion text

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

Advisory Opinion: 1900D
Year Issued: 2000
RPC(s): RPC 1.2(a); 1.4; 1.5; Informal Opinion 1732
Subject: Contingent fee agreement; division of property acquired by unmarried parties

You asked the committee whether a dispute concerning the division of property acquired by parties who are not married (and who were not married during the time the property was acquired) may be handled by a lawyer acting under a contingency fee agreement. In making the inquiry, the inquirer expressed concerns about greed among members of the bar and concerns that a lawyer may be reluctant to settle a case when he or she is to be compensated in that matter.

We conclude that RPC 1.5(d) does not prohibit contingency fee agreements in such an instance as the inquirer describes. Moreover, with respect to the concerns raised as to the incentives of lawyers in contingent fee cases, the committee observes that RPC 1.5(a) requires fees to be reasonable; that RPC 1.5(a)(8) requires that the client must receive a reasonable and fair disclosure of the material elements of the fee agreement; that RPC 1.5(c)(1) requires contingent fee agreements to be in writing; that RPC 1.4 requires the lawyer to keep the client informed about a matter sufficiently to make informed decisions regarding the matter; and, finally, that RPC 1.2(a) requires a lawyer to abide by a client’s decisions concerning the objectives of the representation, including the client’s decision whether to accept an offer of settlement of a matter.

The committee hopes this explains previous Informal Opinion 1732 more adequately and alleviates the inquirer’s concerns.