Opinion #10. Contingent Fee in a Divorce Property Settlement

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

The Commission has been asked whether Rule 8(c) of the Maine Bar Rules prohibits in a divorce case a fee contingent upon the amount of the property settlement that a lawyer may obtain for his or her client.

Opinion

Rule 8(c) of the Maine Bar Rules, which is identical to former Rule 88(c) of the Maine Rules of Civil Procedure, provides in relevant part:

(c) Proceedings or Claims to Which Applicable. No contingent fee agreement shall be made . . . (2) in respect of the procuring of a divorce, annulment of marriage or legal separation. . . .

In their discussion of Rule 88(c) of the Maine Rules of Civil Procedure as it relates to these questions, the commentators state:

Almost universally such marital actions are thought not to be proper subjects for contingent fee arrangements on two public policy grounds: (1) Such an agreement would have the tendency to deter or prevent a reconciliation between husband and wife, contrary to public interest in preserving the marriage; and (2) such private agreement would interfere with the statutory responsibility of the court to fix alimony for the wife and support payments for the children in amounts appropriate for the needs and the husbands’s means, and to fix the attorneys’ fees to be borne by the husband. 2 Field, McKusick & Wroth, Maine Civil Practice 362 (2d ed. 1970).

The Grievance Commission concludes that identical Rule 8(c) of the Maine Bar Rules prohibits a contingent fee in the situation posed in the question presented. A contingent fee is specifically prohibited in a divorce case by Maine Bar Rule 8(c)(2). Both of the policies set forth in Maine Civil Practice are involved even though the fee is tied to the amount of the property settlement. Moreover, in such cases, the attorney is confronted with the additional temptation to negotiate a settlement which maximizes the property aspects of the settlement upon which his fee is based at the possible expense of non‑monetary items such as visitation rights.


Enduring Ethics Opinion