May an attorney charge a contingent fee based on a percentage of a lump-sum property settlement awarded in a domestic relations case?

Plain-English summary

The committee considered an employment agreement in which the attorney's fee would be a percentage of a lump-sum property settlement awarded to the client by a court in a domestic relations matter. It concluded that such an arrangement is ethically improper, citing DR 2-105(D) and EC 2-22.

Currency note

This opinion was issued in 1981, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.5(d)(1) and Comment [3a] now codify the circumstances in which 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 Treat this page as historical context, not current guidance.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: Could an attorney take a percentage of a divorce property settlement as a fee?

A: Under this 1981 opinion, no. The committee found it improper to base the fee on a percentage of the court-awarded lump-sum property settlement.

Q: What rule did the committee rely on?

A: It cited DR 2-105(D) of the former Code, along with EC 2-22. The committee note maps the question onto current Rule 1.5(d)(1).

Background and rules framework

The opinion applied the former Code's fee provision DR 2-105(D) and the aspirational EC 2-22 to a contingent-fee arrangement in a domestic relations matter. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and Comment [3a], corresponding to ABA Model Rule 1.5 on fees and the limits on contingent fees in domestic relations matters.

Citations and references

Rules of Professional Conduct:

• DR 2-105(D) (contingent fees) (former Code)
• EC 2-22 (former Code)
• Virginia Rule 1.5(d)(1) and Comment [3a] (contingent fees in family law matters) (cited in the committee note)
• ABA Model Rule 1.5 (fees)

See also

• VA LEO 405: Contingent Fee for Alimony Arrearages
• VA LEO 568: Contingent Fee for a Military Retirement Pay Claim Improper
• VA LEO 588: Contingent Fee for a Child Support Arrearage
• VA LEO 667: Four-Factor Test for Contingent Fees on Child Support Arrearages

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0423.pdf

Original opinion text

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

LEGAL ETHICS OPINION 423

CONTINGENCY FEE – DOMESTIC RELATIONS.

It is ethically improper for an attorney to enter into an employment agreement with his client where the attorney's legal fee would be based upon a percentage of the court-awarded sum awarded to the client as a lump sum property settlement. [See II: DR:2-105(D) and EC:2-22.]

Committee Opinion
August 14, 1981

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.