Opinion #11. Contingent Fee in Arrearage Cases

Issued by the Professional Ethics Commission

Date Issued: April 2, 1980

Question

Does Rule 8(c) of the Maine Bar Rules prohibit in a motion to enforce a divorce judgment a fee contingent upon the amount of alimony or child support in arrears which the lawyer obtains from his 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 that:

No contingent fee agreement shall be made . . . (2) in respect of the procuring of a divorce . . . or (3) in connection with any proceeding where the method of determination of attorneys’ fees is otherwise expressly provided by statute or administrative regulations.

In 2 Field, McKusick & Wroth, Maine Civil Practice, 362 (2nd ed. 1970), it is stated that:

The specific language of the second exception in Rule 88(c) would not seem to go far enough to except post‑judgment motions for modification or enforcement of alimony, support or other provisions of a divorce judgment. On the other hand, at least the second policy disfavoring contingent fee agreements applies equally after judgment as before. Furthermore, the third exception of Rule 88(c) applies, at least so far as the wife’s counsel fees are concerned, because the statute (19 M.R.S.A. § 722) provides that the court may order the husband to pay the wife “sufficient money for the prosecution or defense thereof,” including attorney’s fees.

Such fees paid to the wife’s attorney are “reasonable fees” for services actually rendered, without any relation to any contingency or to any contingent fee understanding that the wife may have with the attorney. This is a situation “when the method of determination of attorneys’ fees is otherwise expressly provided by statute.”

The Commission is less certain than the authors of Maine Civil Practice as to the proper construction of 19 M.R.S.A. § 722.[1]

Since the answer to the question presented depends on the resolution of a question of law rather than the interpretation of the Maine Bar Rules, we decline to undertake it. Compare Op. #48 of the Maine Bar Association Ethics Committee issued 2/2/77 in which the same conclusion was reached. The Commission is of the opinion, however, that whatever the proper interpretation of section 722 may be, a lawyer would be well advised to disclose any contingent fee arrangement to the Court so that it is clear that the presiding justice had in mind this prospective income from the plaintiff in making an order that counsel fees be paid by the defendant.


Footnote

[1] The Commission believes that the preferred practice among all lawyers should certainly be to establish procedures that will enable them to recognize conflicts of interest, or potential conflicts, at the earliest possible stage of dealing with a prospective client, in order to avoid the type of problem that arose in the instant case. On the other hand, the Commission recognizes the practical difficulties lawyers face in this regard, particularly in the larger firms (some of which have more than one office location), and the need to obtain certain basic information from a client at the initial conference to avoid additional consultations and expense to the client.


Enduring Ethics Opinion