Can a lawyer advertise contingent-fee representation for collecting child or spousal support arrearages?

Plain-English summary

The inquiry concerned an advertising brochure aimed at members of the public needing help collecting child or spousal support arrearages. The brochure's final paragraph told readers that "under some circumstances," a person unable to afford a lawyer "may be able to qualify for a contingent fee arrangement" allowing representation for a percentage of the funds recovered. The committee was asked whether that language was proper.

The committee applied DR 2-101 and DR 2-103 (no false, fraudulent, misleading, or deceptive communications or solicitations, and no coercion or unwarranted promises given the matter's sophistication and the recipient's state) and DR 2-105 (fees must be reasonable and adequately explained). It concluded that the brochure's language about circumstances allowing a contingent fee may be misleading, because it is long established that a contingent fee in domestic-relations matters is improper, and EC 2-22 states such arrangements are "rarely justified" given the human relationships and unique character of the proceedings. It cited LE Op. 423, which found it improper to base a fee on a percentage of a court-awarded sum or lump-sum property settlement.

The committee held the advertisement would not be improper if it clearly indicated that a contingent fee is generally permissible only where child-support arrearages have been reduced to judgment; suggesting that contingent fees are common or permissible in most other domestic-relations cases is likely misleading, since they are only rarely proper (citing LE Op. 667 and LE Op. 850 for the special circumstances). It added that even with proper disclosure, the lawyer must still explain before accepting employment that the client remains liable for litigation costs and expenses, and that the contingent fee must be reasonable and adequately explained. The committee declined to assess the brochure's statistical claims, assuming them true for the inquiry, and cautioned against generalized outcome predictions that create unrealistic expectations and undermine public confidence (citing EC 2-10 and EC 2-11).

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rules 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; lawyer advertising is now governed by Rule 7.1. 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 advertise contingent-fee representation for collecting support arrearages?

A: Under this 1989 opinion, only with care. The committee concluded the advertisement would not be improper if it clearly stated that a contingent fee is generally permissible only where child-support arrearages have been reduced to judgment.

Q: Why was the original brochure language a problem?

A: The committee said the open-ended language may be misleading, because contingent fees in domestic-relations matters are only rarely proper under EC 2-22, so suggesting they are common or generally available is likely deceptive.

Q: What must the lawyer still tell the client even with a proper ad?

A: The committee said the lawyer must explain before accepting employment that the client remains liable for litigation costs and expenses, and that the contingent fee must be reasonable and adequately explained under DR 2-105.

Background and rules framework

The opinion interpreted former Virginia DR 2-101 and DR 2-103 (advertising and solicitation that is not false or misleading), DR 2-105 (reasonable, adequately explained fees), and the aspirational EC 2-22, EC 2-10, and EC 2-11. Advertising is now governed by Virginia Rule 7.1, and contingent fees in family-law matters by Rule 1.5(d).

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-101; DR 2-103 (advertising and solicitation)
• Former Virginia DR 2-105 (reasonable and explained fees); EC 2-22; EC 2-10; EC 2-11
• ABA Model Rule 7.1 (communications about services); Model Rule 1.5 (fees; contingent-fee limits)

Other opinions cited:

• Virginia LE Op. 862: misleading-communication standard.
• Virginia LE Op. 423: improper to base a fee on a percentage of a court-awarded sum or property settlement.
• Virginia LE Op. 667; LE Op. 850: special circumstances for a contingent fee on a child-support arrearage judgment.

See also

• VA LEO 1298: A Contingent Fee in a Post-Divorce Property Appeal
• VA LEO 1750: Lawyer Advertising and Solicitation Compendium
• VA LEO 1606: Fees Compendium (Retainers, Fixed, Contingent)
• VA LEO 1385: Noting Out-of-State Board Certification on Letterhead

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1229.pdf

Original opinion text

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

Committee Opinion
April 25, 1989
LEGAL ETHICS OPINION 1229

ADVERTISEMENT AND
SOLICITATION – CONTINGENT FEES – DOMESTIC RELATIONS PRACTICE:
ADVERTISEMENT FOR CHILD
SUPPORT ARREARAGES
COLLECTIONS ON A CONTINGENT
FEE BASIS.

You have asked the Committee to consider the propriety of an advertising brochure directed to those members of the general public in need of legal advice for the collection of child or spousal support arrearages. You are particularly interested in knowing the appropriateness of the language contained in the final paragraph of the brochure, which states:

Under some circumstances, if you are unable to afford a lawyer to represent you in collecting what is owed, you may be able to qualify for a contingent fee arrangement which would allow a lawyer to represent you for a percentage of the funds which are recovered.

The Disciplinary Rules governing public advertisement and solicitation of professional employment are DR:2-101 and DR:2-103, which provide that a lawyer shall not participate in the use of any form of public communication nor shall he solicit employment from a nonlawyer who has not sought his advice regarding employment if such communication or solicitation contains a false, fraudulent, misleading or deceptive statement or claim, or if such communication has a substantial potential for or involves the use of coercion, duress, intimidation, unwarranted promises of benefits, over persuasion, or harassing conduct in light of the sophistication of the legal matter, and the physical, emotional, and mental state of the person to whom it is directed. (See L E Op. No. 862) In addition, DR:2-105 states that a lawyer's fees shall be reasonable and adequately explained to the client.

As for the final paragraph of the brochure, the Committee would opine that the language indicating circumstances under which the contingency arrangement may be permissible may be misleading, since it has long been established in the legal community that a contingent fee arrangement in domestic relations matters is improper. The Committee would direct your attention to EC:2-22 which states in part that, "because of the human relationships involved and the unique character of the proceedings, contingency arrangements in domestic relations cases are rarely justified." The Committee opined in LE Op. 423 that it was ethically improper to enter into a fee arrangement where the legal fee would be based on a percentage of the court awarded sum or the lump sum property settlement to the client.

The Committee is of the view, however, that the advertisement would not be improper if it clearly indicates that a contingency fee is generally permissible in cases where child support arrearages have been reduced to judgment. An advertisement which suggests that contingency fees are common or permissible in most other domestic relations cases is likely to be misleading because, in fact, contingency fee arrangements are only rarely proper. The Committee would direct your attention to LE Op. 667 and L E Op. No. 850, which enumerate the special circumstances under which a contingency fee arrangement for the collection on a judgment of child support arrearages is acceptable.

Notwithstanding the foregoing of disclosure, the Committee would advise that an attorney is still required to explain to the individual clients prior to accepting employment that the client is not relieved of liability for any costs and expenses in connection with the litigation and case file. Furthermore, the Committee believes the attorney also must be mindful that the contingency fee arrangement must be a reasonable one and must be adequately explained to the client.

The Committee cannot opine as to the veracity of the statistical information presented in the scenario recited in the brochure and will assume the information contained therein to be true and in compliance with DR:2-101 and DR:2-103 for the purposes of this inquiry. However, the Committee would caution an attorney to guard against generalized statements regarding predictions of outcomes which tend to be deceptive or misleading and produce unrealistic expectations in particular cases. That is the type of advertisement which may bring about distrust of the law and lawyers as well as undermine the public confidence in the legal system. (See EC:2-10 and EC:2-11)

Committee Opinion
April 25, 1989

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.