Is a contingent fee proper in an adult's civil suit against a parent for childhood abuse, and does the agreement need to meet the contingent-fee disclosure rule?

Plain-English summary

A 29-year-old client retained the inquiring lawyer to sue her father for child abuse she suffered as a child. The retainer agreement set an hourly fee of $100 with a $2,500 initial retainer, with continued hourly payments until the matter settled. On a judgment or settlement, the lawyer would be entitled to one-third of the sums received, less all hourly fees the client had already paid; if the one-third share were less than the hourly fees paid, the lawyer would take nothing further from the recovery but would not have to refund fees due or paid. The client's present counsel accused the lawyer of acting unethically by entering the agreement.

The committee recalled LE Op. 189, which expressed the State Bar's reluctance to approve contingent fees in domestic-relations cases and approved them only where the impact on human relationships would clearly not be adversely affected. It concluded the described situation, a suit between an adult child and her father for abuse, did not fall under the LE Op. 189 guidelines. It then turned to DR 2-105(C), which permits a contingent fee except in criminal cases or where prohibited by law, and requires the agreement to state how the fee is determined (the percentages on settlement, trial, or appeal, the expenses deducted, and whether they are deducted before or after the fee), plus a closing statement at the matter's conclusion. The committee found the agreement complied with DR 2-105(C), and advised that at the conclusion of the matter the lawyer should provide the client with a closing statement showing the fee and the method of its determination.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.5(d)(1) and Comment [3a] codify when lawyers may handle family-law matters on a contingent-fee basis. 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 Treat this page as historical context, not current guidance.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: Was a contingent fee proper in a suit against a parent for childhood abuse?

A: Under this 1988 opinion, the committee concluded the suit did not fall under its reluctance to approve contingent fees in domestic-relations cases, and that the agreement complied with DR 2-105(C).

Q: What did DR 2-105(C) require of the agreement?

A: It had to state how the fee is determined, including the percentages on settlement, trial, or appeal, the expenses to be deducted, and whether they come out before or after the fee, with a closing statement at the end.

Q: What did the committee advise the lawyer to do at conclusion?

A: To provide the client with a closing statement showing the fee and the method of its determination.

Background and rules framework

The opinion interpreted former Virginia DR 2-105(C), the contingent-fee provision of the Code. Virginia's current counterpart is Rule 1.5, the analog of ABA Model Rule 1.5; as the committee note records, Rule 1.5(d)(1) and Comment [3a] now codify when family-law matters may be handled on contingency.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-105(C) (contingent-fee agreements)
• ABA Model Rule 1.5 (fees; contingent fees)

Other opinions cited:

• Virginia LE Op. 189: reluctance to approve contingent fees in domestic-relations cases.

See also

• VA LEO 1062: Contingent Fee for a Forgotten Marital Asset
• VA LEO 1298: Contingent Fee in a Divorce Appeal
• VA LEO 1174: Contingent Fee in a Support Estate Claim
• VA LEO 1229: Advertising Contingent-Fee Support Cases

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1081.pdf

Original opinion text

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

Committee Opinion
May 17, 1988
LEGAL ETHICS OPINION 1081

DOMESTIC RELATIONS –
CONTINGENT FEES.

You have requested an informal, advisory opinion from the Virginia State Bar Standing
Committee on Legal Ethics concerning a proposed retainer agreement which was
formalized between you and a client on June 12, 1985. Your client, 29 years old, retained
you to file a suit against her father for child abuse which occurred when your client was a
child. In the retainer agreement, you and your client agreed that your fee would be $100
per hour and that the client would provide you an initial retainer of $2,500. It was agreed
that the client would continue to pay you, even after the initial retainer was expended,
until the matter was settled. In the event of a judgment or a settlement, you would be
entitled to one-third of such sums received, but from that proportion it was agreed that all
of the hourly fees your client had up to that time paid would be deducted. In the event
that your share of such a judgment or settlement was less than the hourly sums received,
you would not be entitled to any part of such judgment or settlement, but neither would
you be required to forfeit any part of fees due or paid.
Your client's present counsel has accused you of acting unethically by entering into this
retainer agreement.
In L E Op. No. 189 the State Bar set forth its reluctance to approve contingent fees in
domestic-relations cases. The Committee opined in that opinion that contingent fees are
to be approved in domestic-relations cases only in circumstances where the impact on
human relationships will clearly not be adversely affected. The Committee does not
believe the situation which you described falls under the guidelines of L E Op. No. 189.
Therefore, the Committee refers you to DR:2-105(C), which states "A fee may be
contingent on the outcome of the matter for which the services are rendered, except in
criminal cases or other matters in which a contingent fee is prohibited by law. A
contingent fee agreement shall state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to the lawyer in the event of
settlement, trial, or appeal, expenses to be deducted from the recovery, and whether
expenses are to be deducted before or after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a closing
statement showing the fee and the method of its determination."
The Committee believes that the contingency agreement which you entered into with
your client complies with the requirements of DR:2-105(C). The Committee does advise
that upon conclusion of the matter, you should provide the client with a closing statement
showing the fee and method of determination.
Committee Opinion
May 17, 1988

Committee Opinion
May 17, 1988
Legal Ethics Committee Notes. – Rule 1.5(d)(1) and Comment [3a] codify the
circumstances in which lawyers may handle family law matters on a contingent fee basis.