When can a Virginia lawyer collect child support arrearages on a contingent fee?

Plain-English summary

This opinion sets out the committee's test for when a contingent fee may be used to collect child support arrearages, the test later applied in LE Op. 778 and LE Op. 850. The committee concluded such an arrangement is unethical unless all four of these factors are satisfied: (1) the children involved have achieved or will soon achieve the age of maturity; (2) the attorney has objectively satisfied himself that the contingent fee would not likely undermine the noncustodial parent's relationship with the minor child or children; (3) the prospective client is indigent and no other type of fee arrangement is practical; and (4) the fee arrangement is fair and reasonable under the circumstances.

The committee cited LE Op. 189, LE Op. 405, and EC 2-22, comparing LE Op. 363 and LE Op. 423.

Currency note

This opinion was issued in 1985, 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. Contingent fees in domestic relations matters are now addressed by Virginia Rule 1.5(d), which the committee in later opinions (LE Op. 778, LE Op. 850) tied to this same analysis. 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 Treat this page as historical context, not current guidance.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 allowed to collect overdue child support in Virginia?

A: Under this 1985 opinion, only when all four factors are met: the children at or near maturity, no undermining of the parent/child relationship, an indigent client with no practical alternative, and a fair, reasonable fee.

Q: What makes such a fee unethical under the test?

A: Failing any one of the four factors. The committee framed the arrangement as unethical "unless" each is satisfied.

Q: How has this test been applied since?

A: The committee applied it in LE Op. 778 (fee improper where the child was young, had recently seen the parent, and the client was not indigent) and LE Op. 850 (fee permissible where the factors were met).

Background and rules framework

The opinion states the committee's contingent-fee test for domestic relations collection matters under the former Code, citing EC 2-22 and prior opinions. The handling of contingent fees in family law matters is now addressed by Virginia Rule 1.5(d), corresponding to ABA Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• EC 2-22 (former Code of Professional Responsibility)
• Virginia Rule 1.5(d) / ABA Model Rule 1.5 (contingent fees in domestic relations matters)

Other opinions cited:

• LE Op. 189; LE Op. 405 (relied on); cf. LE Op. 363, LE Op. 423

See also

• VA LEO 778: Contingent Fee for Child Support Arrearages
• VA LEO 850: Contingent Fee for Child Support Arrearages
• VA LEO 844: Sharing Fees Among Related Law Firms

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0667.pdf

Original opinion text

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

LEGAL ETHICS OPINION 667

CONTINGENT FEES FOR COLLECTION
OF CHILD SUPPORT ARREARAGES.

A contingent fee arrangement in collecting child support arrearages is unethical unless
the following factors are satisfied:

1. Children involved have achieved or will soon achieve the age of
   maturity;
2. The attorney involved has objectively satisfied himself that the contingent fee
   arrangement would not likely in any way undermine the non-custodial parent's
   relationship with the minor child or children;
3. The prospective client is indigent and no other type of fee arrangement is
   practical;
4. The fee arrangement is fair and reasonable under the circumstances.
   [LE Op. 189 and LE Op. 405, EC:2-22; cf. LE Op. 363 and LE Op. 423]

Committee Opinion
March 15, 1985

Legal Ethics Committee Notes. – Rule 1.8(i) now allows related lawyers to be directly
adverse to one another if the clients consent.