Opinion #157. Contingent Fee in Post-Divorce Proceeding

Issued by the Professional Ethics Commission

Date Issued: March 5, 1997

Question

The Commission has been asked whether Maine Bar Rule 8, Contingent Fees, prohibits a contingent fee agreement in a post-divorce proceeding to enforce the division of property set forth in the decree.

Discussion

We answer the question in the negative. Maine Bar Rule 8(c) provides that no contingent fee agreement shall be made

. . .(2) in respect of the procuring of a divorce, annulment of marriage, or a legal separation, 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 the 1970 edition of Maine Civil Practice, Field, McKusick and Wroth explained the rationale for prohibiting contingent fee agreements “in respect of the procuring a divorce” as follows.

Almost universally such marital actions are thought not to be a proper subject 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 husband’s means, and to fix the attorney’s fees to be borne by the husband. Field, McKusick & Wroth, *Maine Civil Practice*, 2d. Edition, p.362.

In Opinion No. 10 the Grievance Commission concluded that Rule 8(c) prohibits an agreement for representation in a divorce case in which the fee would be contingent on the amount of the property settlement.

The question presented by the present inquiry is, however, different. The divorce has been granted; the time for reconciliation has long since passed; and the court has discharged its statutory responsibility to fix alimony, support payments for children, and attorney’s fees to be borne by each of the divorcing spouses. No public policy would be impaired by allowing contingent fee agreements in proceedings to enforce the property division decreed in the divorce judgment.

A somewhat similar issue was considered by the Grievance Commission in Opinion No. 11. There the Commission noted that the authors of Maine Civil Practice thought the specific language of Rule 8(c) did not reach post-judgment motions for modification or enforcement of alimony, support or other provisions of a divorce decree. They had concluded, however, that 19 M.R.S.A. Sec. 722, as it then existed, was a “method of determination of attorney’s fees. . .otherwise expressly provided by statute. . .” Accordingly, they suggested that a contingent fee agreement was likewise prohibited in connection with a post-divorce motion to enforce the alimony or child support provisions of a decree. The Grievance Commission suggested the possibility of a different interpretation of Sec. 722 but declined to express an opinion, finding the question presented to be one of law rather than interpretation of the Maine Bar Rules.

The Ethics Commission now concludes that a post-divorce proceeding to enforce provisions of the decree that divide property is not “the procuring of a divorce”, for which a contingent fee would be prohibited by exception (2) of MBR 8(c). Nor is it a proceeding “where the method of determination of attorney’s fees is otherwise expressly provided by statute or administrative regulations”, for which a contingent fee would be prohibited by exception (3) of MBR 8(c). Neither 19 M.R.S.A. Sec. 722, on which the authors of Maine Civil Practice relied, nor the enforcement provisions of 19 M.R.S.A. Ch. 14-A, applies to enforcing a division of property in a divorce decree.[1] Enforcement of such a division of property would presumably be undertaken, at the option of the enforcing party, either under 14 M.R.S.A. Sec. 252, or by relying on the inherent power of the Court, see Elliot v. Elliot, 431 A.2d 55 (Me. 1981), or by commencing a civil action to take possession of property wrongfully withheld. None of these alternatives includes “a method of determination of attorney’s fees that is expressly provided by statute or administrative regulations.” Accordingly, we conclude that Rule 8(c) does not prohibit the fee agreement in question.


Footnote

[1]The same may be said of comparable enforcement provisions in new Title 19-A, which will become effective October 1, 1997.


Enduring Ethics Opinion