Can a Maine lawyer charge a contingent fee in a post-divorce proceeding to enforce the property division set out in the divorce decree?

Plain-English summary

The Commission was asked whether Maine Bar Rule 8(c), which governs contingent fees, barred a contingent fee agreement in a post-divorce proceeding to enforce the division of property set out in the decree. The Commission answered no.

Rule 8(c) prohibited contingent fee agreements in two situations relevant here: in respect of procuring a divorce, annulment, or legal separation (exception 2), and in any proceeding where the method of determining attorney's fees is otherwise expressly provided by statute or administrative regulation (exception 3). Quoting Field, McKusick and Wroth's Maine Civil Practice, the Commission explained the policy behind the divorce ban: a contingent fee in a marital action could discourage reconciliation and could interfere with the court's statutory duty to fix alimony, support, and fees. In Opinion No. 10 the Grievance Commission had read Rule 8(c) to bar a fee contingent on the size of a property settlement in a divorce case itself.

The Commission found the inquiry before it different. The divorce had already been granted, the time for reconciliation had passed, and the court had discharged its statutory duties as to alimony, support, and fees. No public policy underlying the divorce ban would be impaired by allowing a contingent fee in a proceeding to enforce the property division already decreed. The Commission concluded that such an enforcement proceeding is not the "procuring of a divorce" under exception (2). It also concluded that exception (3) did not apply, because neither 19 M.R.S.A. Sec. 722 (on which the Maine Civil Practice authors had relied in the related Opinion No. 11) nor the enforcement provisions of 19 M.R.S.A. Ch. 14-A governs enforcement of a property division. The Commission noted that enforcement would proceed instead under 14 M.R.S.A. Sec. 252, the court's inherent power (citing Elliot v. Elliot), or a civil action to recover wrongfully withheld property, none of which sets a statutory method for determining fees. Accordingly, Rule 8(c) did not prohibit the proposed fee agreement.

Currency note

This opinion was issued in 1997, 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. 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: Could a Maine lawyer take a contingent fee to enforce a divorce decree's property division?

A: The opinion concluded yes. It reasoned that once the divorce is granted and the court has fixed alimony, support, and fees, a proceeding to enforce the decreed property division is not "procuring a divorce," so Rule 8(c)'s divorce exception did not bar a contingent fee.

Q: Did the rule still bar a contingent fee in the divorce itself?

A: Yes. The opinion treated the earlier Opinion No. 10 as controlling for the divorce proper, where Rule 8(c) barred a fee contingent on the property settlement; the distinction was that the property division had already been decreed in the case before it.

Q: Why did the statutory-fee exception not apply?

A: The opinion concluded that no statute set the method for determining fees in enforcing a property division. It found that 19 M.R.S.A. Sec. 722 and the Ch. 14-A enforcement provisions did not reach property-division enforcement, which would proceed under 14 M.R.S.A. Sec. 252, the court's inherent power, or an ordinary civil action.

Background and rules framework

The opinion interprets Maine Bar Rule 8(c), which prohibited contingent fee agreements in connection with procuring a divorce and in proceedings where a fee method is expressly set by statute or regulation. This corresponds to ABA Model Rule 1.5(d), which bars contingent fees in domestic-relations matters where the fee is contingent on securing a divorce or on the amount of alimony, support, or property settlement. The Commission read the divorce exception by reference to its policy purpose and confined it to procuring the divorce, not to later enforcement of a decree.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5(d) (contingent fees prohibited in domestic-relations and criminal matters)
• Maine Bar Rule 8(c)

Statutes:

• 19 M.R.S.A. Sec. 722; 19 M.R.S.A. Ch. 14-A; 14 M.R.S.A. Sec. 252

Cases:

• Elliot v. Elliot, 431 A.2d 55 (Me. 1981), inherent power of the court to enforce a divorce decree

Other opinions cited:

• Maine Grievance Commission Opinion No. 10; Opinion No. 11

See also

• NY State Bar Op. 690: Contingent Fee in Spousal Tort
• ABA Formal Op. 94-389: Contingent Fees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89685

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: March 5, 1997

Question

The Commission has been asked whether Maine Bar Rule 8, Contingent Fees, prohibits a contingent fee agreement in a post-divorce proceeding to enforce the division of property set forth in the decree.

Discussion

We answer the question in the negative. Maine Bar Rule 8(c) provides that no contingent fee agreement shall be made

. . .(2) in respect of the procuring of a divorce, annulment of marriage, or a legal separation, or (3) in connection with any proceeding where the method of determination of attorneys? fees is otherwise expressly provided by statute or administrative regulations.

In the 1970 edition of Maine Civil Practice, Field, McKusick and Wroth explained the rationale for prohibiting contingent fee agreements ?in respect of the procuring a divorce? as follows.

Almost universally such marital actions are thought not to be a proper subject for contingent fee arrangements on two public policy grounds: (1) Such an agreement would have the tendency to deter or prevent a reconciliation between husband and wife, contrary to public interest in preserving the marriage; and (2) such private agreement would interfere with the statutory responsibility of the court to fix alimony for the wife and support payments for the children in amounts appropriate for the needs and the husband?s means, and to fix the attorney?s fees to be borne by the husband. Field, McKusick & Wroth, Maine Civil Practice, 2d. Edition, p.362.

In Opinion No. 10 the Grievance Commission concluded that Rule 8(c) prohibits an agreement for representation in a divorce case in which the fee would be contingent on the amount of the property settlement.

The question presented by the present inquiry is, however, different. The divorce has been granted; the time for reconciliation has long since passed; and the court has discharged its statutory responsibility to fix alimony, support payments for children, and attorney?s fees to be borne by each of the divorcing spouses. No public policy would be impaired by allowing contingent fee agreements in proceedings to enforce the property division decreed in the divorce judgment.

A somewhat similar issue was considered by the Grievance Commission in Opinion No. 11. There the Commission noted that the authors of Maine Civil Practice thought the specific language of Rule 8(c) did not reach post-judgment motions for modification or enforcement of alimony, support or other provisions of a divorce decree. They had concluded, however, that 19 M.R.S.A. Sec. 722, as it then existed, was a ?method of determination of attorney?s fees. . .otherwise expressly provided by statute. . .? Accordingly, they suggested that a contingent fee agreement was likewise prohibited in connection with a post-divorce motion to enforce the alimony or child support provisions of a decree. The Grievance Commission suggested the possibility of a different interpretation of Sec. 722 but declined to express an opinion, finding the question presented to be one of law rather than interpretation of the Maine Bar Rules.

The Ethics Commission now concludes that a post-divorce proceeding to enforce provisions of the decree that divide property is not ?the procuring of a divorce?, for which a contingent fee would be prohibited by exception (2) of MBR 8(c). Nor is it a proceeding ?where the method of determination of attorney?s fees is otherwise expressly provided by statute or administrative regulations?, for which a contingent fee would be prohibited by exception (3) of MBR 8(c). Neither 19 M.R.S.A. Sec. 722, on which the authors of Maine Civil Practice relied, nor the enforcement provisions of 19 M.R.S.A. Ch. 14-A, applies to enforcing a division of property in a divorce decree.[1] Enforcement of such a division of property would presumably be undertaken, at the option of the enforcing party, either under 14 M.R.S.A. Sec. 252, or by relying on the inherent power of the Court, see Elliot v. Elliot, 431 A.2d 55 (Me. 1981), or by commencing a civil action to take possession of property wrongfully withheld. None of these alternatives includes ?a method of determination of attorney?s fees that is expressly provided by statute or administrative regulations.? Accordingly, we conclude that Rule 8(c) does not prohibit the fee agreement in question.

Footnote

[1]The same may be said of comparable enforcement provisions in new Title 19-A, which will become effective October 1, 1997.