Can a divorce lawyer or the lawyer's firm take a contingent fee for a tort suit by the client against the spouse, even if it is tried with the matrimonial case?

Plain-English summary

The committee was asked whether the lawyer who represents a wife in a divorce, or another lawyer in the firm, could represent her in a civil assault claim against the husband under a contingent fee. EC 2-20 had long discouraged contingent fees in domestic relations matters as "rarely justified," but since 1990 DR 2-106(C)(2) has barred them only where the fee turns on securing a divorce or on the amount of maintenance, support, equitable distribution, or property settlement. The committee noted that even before codification, New York courts had proscribed fees contingent on procuring a divorce or on alimony, while the committee had allowed contingent fees for collecting past-due support (N.Y. State 443 (1976)).

The committee examined whether a tort claim should be treated as part of the divorce, since New York makes fault relevant and the facts may overlap. It identified the actions' different purposes: a tort action redresses a legal wrong in damages, while a divorce severs the marriage and fixes support and property rights. It noted procedural differences (tort claims go to a jury, divorce claims to a judge; maintenance can be modified, tort judgments cannot), while acknowledging factual overlap and a trend toward trying spousal battery claims within the matrimonial proceeding (citing Maharam v. Maharam). Even where joined for convenience, courts often try the segments separately.

The committee concluded that as long as the tort claim could properly be brought as a separate action, there is no ethical bar to a contingent fee for it, because DR 2-106(C)(2)'s prohibited contingencies all depend on dissolving the marriage and fixing marital rights, not on compensating injury. It treated the question of whether the claims are separate or must be joined as a question of law outside its jurisdiction. The arrangement serves the public policy of letting the spouse bring all available claims, but the lawyer must keep scrupulous time records separating tort work from divorce work, allocate shared work on a reasonable basis, and expect that allocation to be subject to the matrimonial judge's scrutiny.

Currency note

This opinion was issued in 1997, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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: Are contingent fees barred in all divorce-related matters?

A: The opinion concluded no. DR 2-106(C)(2) bars a contingent fee only where it turns on securing a divorce or on the amount of support, maintenance, equitable distribution, or property settlement.

Q: Can the divorce lawyer also handle the spousal tort claim on contingency?

A: The opinion concluded yes, where the tort claim could be brought as a separate action, even if it is tried together with the matrimonial case; the matrimonial work itself must still be billed at a fixed or hourly rate.

Q: What does the lawyer have to do to keep the two fees separate?

A: The opinion required scrupulous time records separating tort work from divorce work, a reasonable basis for allocating overlapping work, and acceptance that the allocation may be reviewed by the matrimonial judge.

Background and rules framework

The opinion interpreted DR 2-106(C)(2) (prohibited contingent fees in domestic relations matters) and EC 2-20 of New York's former Code. The Model Rule analogue is Rule 1.5 (fees), which likewise restricts contingent fees in domestic relations matters where payment is contingent on securing a divorce or on the amount of support or property settlement. New York replaced the Code with the Rules of Professional Conduct in 2009; the DR number cited here is historical.

Citations and references

Rules of Professional Conduct:

• MR 1.5(d) (contingent fees barred in certain domestic relations matters)
• NY DR 2-106(C)(2); EC 2-20

Cases:

• Maharam v. Maharam, 177 A.D.2d 262 (1st Dep't 1991), joint trial of divorce financial matters and tort claims
• O'Brien v. O'Brien, 66 N.Y.2d 576 (1985), marital fault and equitable distribution
• Van Vleck v. Van Vleck, 21 App. Div. 272 (4th Dep't 1897), fee contingent on a divorce

Other opinions cited:

• N.Y. State 443 (1976): contingent fee for collecting past-due alimony and child support

See also

• NY State Bar Op. 739: Lawyer referral service fees in domestic relations
• NY State Bar Op. 697: Combined hourly and contingency fee
• NY State Bar Op. 698: Contingent fee for a medical consultant

Source

• Landing page: https://nysba.org/opinion-690/