Can a lawyer take a contingent fee to pursue a divorced client's marital property claim after the other spouse has died?

Plain-English summary

A couple obtained a judgment dissolving their 30-year marriage, but the judgment reserved the division of marital property for a later hearing. The husband died before any agreement or hearing on the property division. The wife's lawyer agreed to represent her on a contingent basis in a claim against the husband's estate (probate disclosed assets possibly derived from marital property), and she moved for a property-distribution hearing in the dissolution action. The question was whether the contingent fee violated Illinois Rule 1.5(d)(1).

Rule 1.5(d)(1) bars a contingent fee in a domestic relations matter where payment or amount is contingent on securing a dissolution, maintenance, support, or a property settlement in lieu thereof, except for representation in matters subsequent to final judgments. The Committee acknowledged that the plain language would appear to bar the fee, because there had never been a final judgment on the property rights. But it reasoned that the public policy behind the prohibition, avoiding any disincentive to reconciliation, had no application once a former spouse had died: reconciliation was no longer merely presumably unavailable but irreversibly so.

Drawing on its earlier Opinion 95-16 (which permitted a contingent fee to enforce a final post-judgment obligation) and on Hazard & Hodes and the Restatement's "pure financial dispute" reasoning, the Committee concluded that the death had rendered the arguments against a contingent fee ineffective, leaving only a financial dispute. The Committee expressly declined to adopt the Restatement's broad position generally, but held that on these facts, with death intervening, an otherwise properly made contingent fee agreement was permissible.

Currency note

This opinion was issued in 2002, before Illinois adopted its current Rules of Professional Conduct, effective January 1, 2010. The Illinois Rule cited here uses the pre-2010 numbering. The ISBA notes the opinion was affirmed by its Board of Governors in January 2010 as generally consistent with the 2010 Rules (it points to current Rule 1.5(d)(1)), though the specific standards may differ. Verify against current rules before relying on any specific rule cited here.

In practice

Under the Illinois rule as it stood at the time, the opinion holds that a contingent fee in a domestic relations matter is permissible where one former spouse has died and only a financial dispute over marital property remains, because the reconciliation policy behind Rule 1.5(d)(1) cannot apply. The opinion identifies the death of a spouse (and the resulting impossibility of reconciliation) as the factor that distinguishes the otherwise-prohibited pre-final-judgment posture, and it conditions the fee on the agreement being in writing and reasonable under Rule 1.5(a).

Common questions

Q: Does Rule 1.5(d)(1) bar a contingent fee before a final marital-property judgment?

A: Generally yes, but the Committee concluded that where a former spouse has died, the rule's reconciliation rationale no longer applies and an otherwise proper contingent fee is permissible.

Q: Why does the spouse's death change the analysis?

A: The opinion concludes that the prohibition exists to avoid discouraging reconciliation, which a death makes irreversibly impossible, leaving only a "pure financial dispute" over property.

Q: What conditions must the contingent fee still meet?

A: The Committee concluded the agreement must be in writing, set out how the fee is calculated and how expenses are handled, and be reasonable under the Rule 1.5(a) factors.

Background and rules framework

The opinion applied Illinois Rule 1.5(d)(1) (the bar on contingent fees in domestic relations matters and its exception for matters subsequent to final judgments) and Rule 1.5(a) (reasonable fees), corresponding to ABA Model Rule 1.5. It contrasted the former Code Rule 2-106(c)(4), the Restatement of the Law Governing Lawyers section 35, and Illinois Appellate Court decisions (Licciardi, Malec, Fletcher).

Citations and references

Rules of Professional Conduct:

• Illinois Rule 1.5(d)(1) (Model Rule 1.5)

Cases:

• Licciardi v. Collins, 180 Ill. App. 3d 1051 (1st Dist. 1989)
• In re Malec, 205 Ill. App. 3d 273 (1st Dist. 1990)
• Fletcher v. Fletcher, 227 Ill. App. 3d 194 (4th Dist. 1992)

Other opinions cited:

• ISBA Opinion No. 95-16

See also

• ISBA Ethics Op. 12-20: Contingent Fee for Discovering and Collecting Assets
• ISBA Ethics Op. 06-01: Lawyer's Personal Guarantee of Liens in a Contingent Matter

Source

• Landing page: https://www.isba.org/ethics/opinions/0203