If a lawyer advertises a flat fee for an uncontested divorce, when can the lawyer depart from that fee without the ad being misleading?

Plain-English summary

A lawyer asked the Commission to define when an attorney may depart from an advertised flat fee for an uncontested divorce without the advertisement being misleading. The inquiry was whether the advertised fee applies only to a divorce uncontested at the outset or to one ultimately heard as uncontested by the court, and whether the fee could be abandoned if substantial negotiation and argument were needed even though the matter was finally heard as uncontested.

The Commission concluded that the advertised fee must be adhered to for any divorce action heard by the court as an uncontested matter, regardless of the negotiation devoted to reaching that result. Conversely, a contest before the court over any issue at any stage of the proceedings removes the case from the uncontested category. The mere filing of a complaint, or other pleadings, does not by itself determine whether an action is contested. So if the defendant files and brings on a motion for an order pending divorce, or appears and contests support, custody, or property division, the matter has become contested; but if a motion is filed and never heard, or an answer is filed yet the divorce is still heard as uncontested, it remains uncontested.

The Commission acknowledged that the labels "contested" and "uncontested" have little to do with how much time a lawyer spends, but found that an objective test for whether an advertised fee is misleading is highly desirable, and that the nature of the court proceedings supplies a fair measure in most cases. That an attorney may occasionally spend far more time than anticipated for the advertised fee is simply a disadvantage of advertising flat rates that must be accepted; a lawyer who wishes to reserve special fee arrangements (for example, for substantial property settlements that are technically uncontested) can insert appropriate warning language in the advertisement.

Finally, addressing the suggestion that a lawyer might create a contest by appropriate pleading to escape the flat fee, the Commission stated that a lawyer is always obliged to carry out the client's lawful instructions and pursue the client's lawful objectives; if a contest is precipitated in doing so, responsibility falls on the client. But if an attorney deliberately misinterprets the client's instructions or manipulates a litigated matter to increase the fee, appropriate disciplinary measures are available.

Currency note

This opinion was issued in 1980, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis, and lawyer-advertising rules in particular were reshaped by later United States Supreme Court decisions. 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 an advertised uncontested-divorce flat fee apply even if the case took heavy negotiation?

A: The opinion concluded yes. So long as the court hears the divorce as an uncontested matter, the advertised fee must be honored regardless of the negotiation involved.

Q: What turns an advertised uncontested divorce into a contested one?

A: The opinion concluded that a contest before the court over any issue, at any stage, removes the case from the uncontested category. The mere filing of pleadings, such as an answer that is never pressed, does not.

Q: Can a lawyer reserve the right to charge more in technically uncontested cases?

A: The opinion concluded yes, by inserting appropriate warning language in the advertisement, for example to cover cases involving substantial property settlements.

Background and rules framework

The opinion interprets Maine Bar Rule 3.9, which governs lawyer advertising and bars communications that are false, fraudulent, misleading, or deceptive, as applied to advertised flat fees. It corresponds to Model Rule 7.1 (communications concerning a lawyer's services) and Model Rule 1.5 (fees). The analysis turns on adopting the nature of the court proceeding as the objective test for whether a divorce is "uncontested" and thus whether the advertised fee controls.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 (communications concerning a lawyer's services); Model Rule 1.5 (fees)
• Maine Bar Rule 3.9

See also

• Maine Ethics Op. 46: Advertising for Personal Injury Cases
• Maine Ethics Op. 16: A Letter Soliciting an Accident Victim's Injury Case
• Maine Ethics Op. 24: Charging Attorney's Fees Beyond the Amount Allowed by a Commission

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89488

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: October 15, 1980

Question

The Commission has been asked to define the circumstances under which an attorney would be justified in departing from an advertised flat fee for an uncontested divorce without risking a charge that the advertisement had been misleading. The inquiring attorney asks whether a fee advertised for an uncontested divorce would be applicable only to a divorce action uncontested only at the outset, or to a divorce action heard as an uncontested matter by the Court, and whether the advertised fee could be abandoned if substantial negotiation and argument proved necessary to handle the divorce, even though it was ultimately heard as an uncontested matter by the Court.

Opinion

The Commission has concluded that a fee advertised for uncontested divorces must be adhered to with respect to any divorce action heard by the Court as an uncontested matter, regardless of the amount of negotiation devoted to achieving that result. Conversely, it is the Commission's opinion that a contest before the Court over any issue at any stage of the proceedings, will remove the case from the uncontested category. Clearly, the mere filing of a complaint does not determine whether an action will be contested or not.

Thus, if the defendant files and brings on for hearing a motion for an order pending divorce, or if the defendant files no answer but appears and contests such issues as child support, custody, and the division of marital property, the divorce has become a contested matter. Conversely, if a motion for an order pending is filed but never heard, or an answer is filed but the divorce is nonetheless heard as an uncontested matter by the Court, the divorce remains uncontested. The filing of pleadings alone can be but a formal step to preserve the right of the defendant to contest the divorce.

It should be obvious that the labels contested and uncontested have very little to do with the amount of time an attorney may spend upon a domestic relations case. It is, however, equally obvious than an objective test to determine whether an advertised fee for a divorce is misleading and to determine whether an attorney is justified in departing from an advertised fee is highly desirable if it is possible. The nature of the Court proceedings can and should provide such a test. In most cases they will be a fair measure of the amount of time required for the case.

Although an attorney may, in a few cases, spend a great deal more time than anticipated to earn a fee that has been advertised for uncontested divorces, that is simply a disadvantage to advertising and charging flat rates for such cases that must be accepted. If an attorney wishes to reserve the right to make special fee arrangements in cases that may, for example, involve substantial property settlements, although technically uncontested, appropriate language can be inserted in an advertisement to warn the public of that possibility.

The inquiring attorney suggests that a lawyer advertising a flat fee for uncontested divorces may, by appropriate pleading, be able to create a contest where none would occur otherwise. The attorney is, of course, always obliged to carry out the lawful instructions of the client, and seek the client's lawful objectives. If in doing so a contest over divorce is precipitated, the responsibility can justifiably be placed on the client. If, on the other hand, an attorney deliberately misinterprets the client's instructions, or manipulates a litigated matter, whatever the nature of that matter, so as to increase the size of the fee that can be charged, appropriate disciplinary measures are available.