Can a Virginia lawyer charge a contingent fee to collect overdue child support arrearages?

Plain-English summary

The committee considered a Virginia attorney asked to assist a Mississippi attorney in collecting child support arrearages owed to an indigent mother, with a proposed 25% contingent fee for the Virginia lawyer. The committee applied LE Op. 667, which holds that a contingent fee in a child support arrearage case is unethical unless: the children have or will soon reach maturity; the lawyer has objectively satisfied himself that the arrangement would not undermine the noncustodial parent's relationship with the child; the client is indigent and no other fee arrangement is practical; and the fee is fair and reasonable.

Applying those factors, the committee treated the partially retarded child, owed support for life under the Ohio decree, as a minor for this purpose, and found that the father's contact (seeing the child twice in ten years, one phone call, and a $50 Christmas check) did not constitute a parent/child relationship that a contingent fee would undermine. On those facts, the committee concluded it was not improper for the attorney to represent the client for a percentage of the recovery. The committee did not approve or disapprove the separate 50% contract arranged in Mississippi and did not opine on the 25% fee proposed for the Virginia attorney.

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 Treat this page as historical context, not current guidance.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: Is a contingent fee allowed to collect overdue child support in Virginia?

A: Under this 1986 opinion, it was permitted only when the four LE Op. 667 conditions were met: the children at or near maturity, no undermining of the parent/child relationship, an indigent client with no practical alternative, and a fair fee.

Q: Did the committee approve the specific percentage fees proposed?

A: No. The committee found the situation within the LE Op. 667 restrictions but did not approve or disapprove the 50% Mississippi contract and did not opine on the 25% fee proposed for the Virginia attorney.

Q: How did the committee treat the child who was owed support for life?

A: It treated the partially retarded child, due support for life under the divorce decree, as a minor for purposes of the analysis, satisfying the first LE Op. 667 factor.

Background and rules framework

The opinion interprets the Virginia ethics rules governing contingent fees in domestic relations matters, applying the test the committee had earlier set out in LE Op. 667 and citing EC 2-22. The committee note maps the question onto current Virginia Rule 1.5(d)(1) and its Comment [3a], the provisions that now address contingent fees in family law matters, the subject covered by 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)
• EC 2-22 (former Code of Professional Responsibility)

Other opinions cited:

• LE Op. 667: three-part test for contingent fees in child support arrearage cases

See also

No sibling opinions yet indexed.

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0850.pdf

Original opinion text

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

LEGAL ETHICS OPINION 850

DOMESTIC RELATIONS – FEES–
CONTINGENT FEE ARRANGEMENT
FOR CHILD SUPPORT ARREARAGES.

An attorney represents the mother of a partially retarded child to recover child support
arrearages. The parents were divorced in Ohio in 1972. The Ohio divorce decree
established the father's obligation to support the partially retarded child for life and two
other children until maturity. The father discontinued support 12 years ago. The mother, a
resident of Mississippi, is indigent. The mother contracted with a Mississippi attorney to
recover child support arrearages, with that attorney receiving 50% of recovery. The
Mississippi attorney, in turn, has contacted a Virginia attorney to assist in the case, since
the husband is a resident of Virginia, and has proposed a 25% contingent fee arrangement
with the Virginia attorney.

This situation is governed by LE Op. 667 which sets forth three requirements which
must be met in order for a contingent fee arrangement to be used in a child support
arrearage case. LE Op. 667 states that a contingent fee arrangement in collecting child
support arrearages is unethical unless the following factors are satisfied:

1. Children involved have 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
   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;
4. The fee arrangement is fair and reasonable under the circumstances.

The committee determined that the partially retarded child should be considered a
minor due support for life under the specific terms of the contractual obligation entered
into 14 years earlier. The committee determined that seeing the parent by coincidence
twice in ten years, and receiving one phone call in ten years and a $50.00 check each
Christmas does not constitute a parent/child relationship which would be undermined
by a contingent fee arrangement.

The committee did not feel able to approve or disapprove the 50% contingent fee
contract originally arranged in Mississippi. The committee does not opine as to the 25%
contingent fee proposed for the Virginia attorney. Therefore, the committee finds this
situation within the restrictions of LE Op. 677.

Under the circumstances, it is not improper for an attorney to represent the client for a
percentage of the child support recovered. [ EC:2-22; LE Op. 667]

Committee Opinion
November 10, 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.