Can a lawyer agree to be paid only if the client's marital asset is sold at the end of a divorce case?

Plain-English summary

A pro bono referral organization asked whether counsel taking divorce cases on a pro bono or quasi-pro bono basis could charge a fee if the parties owned a marital asset that was sold at the end of the case, yielding proceeds to the client, where the possibility of such a fee was disclosed to and accepted by the client at the outset. The inquiry also posed the hypothetical of a private practitioner taking a domestic relations matter on the understanding that the fee would be paid when a marital asset was sold, without any understanding that no fee would otherwise be charged.

The Commission concluded the arrangement is a prohibited contingent fee. Rule 8 defines a contingent fee agreement as one under which compensation, contingent in whole or in part on the successful accomplishment or disposition of the subject matter, is fixed or determined by a formula (excluding agreements to pay the reasonable value of services in any event), and Rule 8 expressly prohibits contingent fee agreements respecting the procuring of divorce, annulment, or legal separation. Because the proposed fee would be paid only if the lawyer were successful in obtaining the client a share of the marital-asset proceeds, that was a successful disposition of the subject matter, so the arrangement was a contingent fee barred by Rule 8(c) (consistent with Grievance Commission Opinion No. 10). Since Rule 8 covered the matter fully, the Commission did not reach whether the arrangement would also be an improper proprietary interest under Rule 3.7(c) or implicate Rule 3.6(i), noting that on the limited facts the lawyer did not appear to have acquired any property interest. It declined, per Opinion No. 67, to opine on similar arrangements by individual private practitioners not before it.

Currency note

This opinion was issued in 1986, 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 Treat this page as historical context, not current guidance.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: Is a fee payable only if a marital asset is sold a contingent fee?

A: The opinion concluded yes; because the fee would be paid only on the successful disposition of the subject matter (obtaining a share of the asset's proceeds), it is a contingent fee within Rule 8.

Q: Are contingent fees allowed in divorce cases in Maine?

A: The opinion concluded no; Rule 8 expressly prohibits contingent fee agreements respecting the procuring of a divorce, annulment, or legal separation.

Q: Does it matter that the client agreed to the fee in advance?

A: The opinion treated the disclosed-and-accepted arrangement as still a contingent fee barred by Rule 8(c); it set aside (without deciding) only a "surprise bill" scenario, which it said would raise other questions.

Background and rules framework

The opinion interprets former Maine Bar Rule 8 (contingent fee agreements), including the Rule 8(c) prohibition on contingent fees in divorce, annulment, and legal-separation matters (Rule 8 having been a redesignation of former Rule 88 of the Maine Rules of Civil Procedure). That prohibition corresponds to ABA Model Rule 1.5 (fees), specifically Model Rule 1.5(d)(1) (no contingent fee in a domestic relations matter contingent on securing a divorce or on the amount of support or property settlement). The opinion declines to reach Rule 3.7(c) (proprietary interest in litigation) or Rule 3.6(i) (avoiding adverse interest).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 (fees; 1.5(d) bar on contingent fees in domestic relations matters)
• Maine Bar Rule 8(c); Rule 3.7(c); Rule 3.6(i)

Other opinions cited:

• Maine Grievance Commission Opinions 10 and 11 (and Opinion No. 67, declining opinions on others' conduct)

See also

• Maine Ethics Op. 157: Contingent Fee Post-Divorce
• Maine Ethics Op. 81: Contingent Fees in Fee-Shift Cases
• ABA Formal Op. 94-389: Contingent Fees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91187

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: December 3, 1986

Question

The Ethics Commission has been asked whether counsel undertaking pro-bono representation in divorce cases would violate the code of Professional Responsibility by charging a fee if the parties owned a marital asset that was sold at the end of the proceeding, presumably yielding proceeds payable to the client previously accepted pro-bono or quasi-pro-bono. It appears from the inquiry that the possibility of paying a fee in this fashion would be disclosed to and accepted by the client at the outset. (A surprise bill to the client would raise questions not discussed in this opinion.) The Committee has also been given the hypothetical case of an attorney in private practice undertaking representation in a domestic relations matter with the understanding that the fee will be paid when a marital asset is sold, but apparently without any understanding that no fee will be charged otherwise.

The question has been posed by an organization engaged in making pro-bono referrals and not by an attorney directly concerned with the hypothetical case.

Opinion

Rule 8 of the Maine Bar Rules defines "contingent fee agreement" as an agreement "express or implied, for legal service . . . under which compensation, contingent in whole or in part upon the successful accomplishment or disposition of the subject matter of the agreement, is to be in an amount which is either fixed or is to be determined under a formula." Excluded from the definition are agreements "in any event to pay to the attorney the reasonable value of his services." Rule 8 expressly prohibits contingent fee agreements "in respect of the procuring of divorce, annulment of marriage or legal separation." Opinion No. 11 of the Grievance Commission declined to express an opinion whether this prohibition applied to post decree proceedings, e.g., to collect support arrearages.

Rule 8, which was simply a redesignation of former Rule 88 of the Maine Rules of Civil Procedure, thus prohibits any agreed fee for representation in a divorce proceeding, express or implied, that is contingent in whole or in part upon "successful . . . disposition of the subject matter." Apparently the effect of the proposal described in the question would be to compensate the attorney if, but only if, he or she were successful in obtaining for the client a share in the proceeds of salable marital assets. That must be accounted successful disposition of the subject matter. Consequently, the arrangement described in the question would be a contingent fee within the meaning of Rule 8 of the Maine Bar Rules, and since it would be an agreement in respect of the procuring of a divorce, would be barred by subparagraph (c) of that rule. For a similar conclusion, see Opinion No. 10 of the Grievance Commission dated April 2, 1980.

Because Rule 8 appears to cover the matter fully, we will not discuss whether the described arrangement would amount to acquisition of a proprietary interest in the cause of action or subject matter of litigation, in violation of Rule 3.7(c), if the attorney were not given by agreement a defined share of the asset in question, but merely understood a bill could be submitted in case a sale of the asset generated disposable proceeds.

The inquiring organizations suggest that Rule 3.6(i) "avoiding adverse interest" might be pertinent. Like the question about the applicability of Rule 3.7(c), this suggestion raises the question whether the attorney has actually acquired any kind of property interest as a result of the arrangement described in the question. Based on the limited facts given to the Commission, that would not seem to be the case.

To the extent the inquiring organization seeks advice as to the propriety of supposedly similar arrangements undertaken by individual private practitioners, the Commission declines to respond for the reasons stated in Opinion No. 67.