Can a lawyer take a child support arrearage case on contingency when the child is young and the custodial parent is not indigent?

Plain-English summary

The committee considered an attorney asked to take a child support arrearage collection case on a contingent fee, where the child was age nine, had visited the noncustodial parent within the recent past (1984), and the custodial parent was apparently not indigent. Applying its prior LE Op. 667, the committee concluded the arrangement was improper, because the facts did not satisfy the conditions LE Op. 667 requires for a contingent fee in a child support arrearage case (the child at or near maturity, no undermining of the parent/child relationship, and an indigent client with no practical alternative).

Currency note

This opinion was issued in 1986, 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 records that current Rule 1.5(d)(1) and Comment [3a] 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 Treat this page as historical context, not current guidance.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: Why was the contingent fee improper here?

A: Under this 1986 opinion, the facts failed the LE Op. 667 test: the child was nine and not near maturity, had recently visited the noncustodial parent, and the custodial parent was apparently not indigent.

Q: Does this mean contingent fees are always barred in child support cases?

A: No. The committee applied LE Op. 667, which permits such fees only when its conditions are met; here they were not. (Compare LE Op. 850, where the committee found the conditions satisfied.)

Background and rules framework

The opinion applies the contingent-fee restrictions for domestic relations matters that the committee set out in LE Op. 667. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and its Comment [3a], the provisions on contingent fees in family law matters, corresponding to ABA Model Rule 1.5.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 1.5(d)(1) and Comment [3a] / ABA Model Rule 1.5 (contingent fees in domestic relations matters)

Other opinions cited:

• LE Op. 667: conditions for a contingent fee in a child support arrearage case

See also

• VA LEO 850: Contingent Fee for Child Support Arrearages
• VA LEO 844: Sharing Fees Among Related Law Firms
• VA LEO 941: Paying for a Physician's Follow-up Letter

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0778.pdf

Original opinion text

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

LEGAL ETHICS OPINION 778

DOMESTIC RELATIONS-CONTINGENT
FEE-CHILD SUPPORT ARREARAGE
COLLECTION.

It is improper for an attorney to accept a child support arrearage collection case on a
contingent fee basis when the child is age nine, the child has visited with the noncustodial
parent within the recent past (1984), and the custodial parent apparently is not indigent.
[LE Op. 667]

Committee Opinion
March 11, 1986

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.