Can a lawyer take a contingent fee to collect child-support arrearages from a deceased parent's estate?

Plain-English summary

A lawyer had represented a maternal grandmother who obtained custody of two grandchildren, with the mother ordered to pay $250 per child per month. The mother made about $300 in payments before dying in an automobile accident, and the lawyer, retained on a contingency basis, obtained a child-support-arrearage judgment of $6,964 against her estate. The lawyer asked whether accepting a contingent fee to collect support arrearages against a deceased parent's estate violated the Virginia Code.

The committee pointed to LE Op. 667 and LE Op. 850, which hold that a contingent fee based on a percentage of recovered child-support arrearages is improper except where: (1) the child will soon reach majority; (2) the attorney is convinced the arrangement would not undermine the noncustodial parent's relationship with the child; (3) the client is indigent or otherwise unable to obtain adequate counsel on an hourly basis; and (4) the fee is fair and reasonable.

Applying that test, the committee concluded those opinions were dispositive. It reasoned that the children's ages could not affect the propriety because the noncustodial parent whose relationship might be at stake was deceased, and that a contingent fee could not undermine that relationship; it noted there was no evidence of a biological paternal relationship that could be diminished. The committee concluded that whether the arrangement was ethically permissible therefore depended only on whether the client could not afford adequate counsel on an hourly basis and whether the fee was fair and reasonable.

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] now address 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 Treat this page as historical context, not current guidance.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: Can a lawyer take a contingent fee to collect support arrearages from an estate?

A: Under this 1988 opinion, potentially yes. The committee applied the four-factor test from LE Op. 667 and LE Op. 850 and concluded the propriety turned on the client's means and the fee's reasonableness, since the other two factors did not apply.

Q: Why didn't the child's age or the parent-child relationship matter here?

A: The committee reasoned that the noncustodial parent whose relationship might be undermined was deceased, so the children's ages could not affect the propriety and a contingent fee could not undermine that relationship.

Background and rules framework

The opinion interpreted former Virginia DR 2-105 (reasonable fees) as applied to contingent fees in domestic-relations matters, drawing on the committee's four-factor test for child-support-arrearage cases. Contingent fees in family-law matters are now addressed by Virginia Rule 1.5(d).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-105 (reasonable fees)
• ABA Model Rule 1.5 (fees; contingent-fee limits in domestic-relations matters)

Other opinions cited:

• Virginia LE Op. 667; LE Op. 850: the four conditions for a contingent fee on child-support arrearages.

See also

• VA LEO 1229: Advertising Contingent Fees for Support Collection
• VA LEO 1298: A Contingent Fee in a Post-Divorce Property Appeal
• VA LEO 1606: Fees Compendium (Retainers, Fixed, Contingent)
• VA LEO 1653: Assigning Marital-Property Proceeds for a Fee

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1174.pdf

Original opinion text

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

Committee Opinion
October 26, 1988
LEGAL ETHICS OPINION 1174

CONTINGENT FEE: OBTAINING JUDGMENT AGAINST THE ESTATE OF THE DECEASED MATERNAL PARENT FOR CHILD SUPPORT ARREARAGES.

You advise that you represented the maternal grandmother in an action to obtain custody of her two illegitimate infant grandchildren from their mother in July, 1986. Parental support was ordered in the amount of $250 per child per month and approximately $300 in total support payments were made by the mother until her untimely death as a result of an automobile accident, which occurred on November 5, 1987. There are several claims pending against the estate, one of which is a judgment for child support payments which you filed on July 14, 1988, in the amount of $6,964 which was returned in favor of your client.

You originally accepted employment on a contingency fee basis and after discussion of this matter with other attorneys, you wish to know whether accepting employment for the collection of child-support arrearages against the estate of a deceased on a contingency fee basis is in violation of the Virginia Code of Professional Responsibility.

The Committee would direct your attention to L E Op. No. 667 and L E Op. No. 850 in which the Committee previously opined that it is ethically improper for an attorney to accept employment on a contingent fee arrangement based on a percentage of the amounts recovered in an action for child-support arrearages, except under the following conditions: (1) the child involved will soon reach the age of maturity; (2) the attorney is convinced that the contingent fee arrangement would not undermine the noncustodial parent's relationship with the minor child; (3) the client is indigent or in a financial position which otherwise would not allow her to obtain adequate counsel on an hourly fee basis; and (4) the fee arrangement is fair and reasonable.

Under the limited facts as you have outlined them in your inquiry, the Committee opines that the aforementioned legal ethics opinions are dispositive of your inquiry. The Committee is of the view that the propriety of the contingent fee arrangement could not be affected by the children's ages as the noncustodial parent with whom a relationship would have been enjoyed is deceased, nor is it possible that a contingent fee agreement would undermine this relationship. (Under the facts, there is no evidence that a biological, paternal relationship exists that could be undermined or diminished.) Therefore, the determination of whether the contingent fee arrangement is ethically permissible depends on whether the client would not be in a financial position to obtain adequate counsel on an hourly fee basis and whether the fee is fair and reasonable.

Committee Opinion
October 26, 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.