Inquiry has been made concerning the propriety of an attorney accepting
employment in a domestic relations matter on a contingent fee basis.
Matters relating to attorney fees are contractual in nature and usually matters of law and
not ethics. See Ligon v. Ligon, 597 S.W.2d 310.
The mandatory provisions of the Code of Professional Responsibility are addressed to
whether or not the fee is excessive, illegal, or improperly divided with another and offer
no regulations regarding the inquiry.
Ethics Considerations of the Code of Professional Responsibility state the aspirational
objectives toward which attorneys should strive and state principles upon which the
attorney can rely for guidance. Ethical Consideration 2-20 gives guidance and states
objectives in the matter under inquiry, which is adopted in this opinion, as follows:
... Although a lawyer generally should decline to accept
employment on a contingent fee basis by one who is able to
pay a reasonable fixed fee, it is not necessarily improper for
a lawyer, where justified by the particular circumstances of
a case, to enter into a contingent fee contract in a civil case
with any client who, after being fully informed of all
relevant factors, desires that arrangement. Because of the
human relationships involved and the unique character of
the proceedings, contingent fee arrangements in domestic
relation cases are rarely justified.
Accordingly, the acceptance of a contingent fee in a domestic relations case will not,
standing alone, warrant disciplinary sanctions. However, if investigation of a complaint
arising out of such a case indicates other misconduct on the part of a lawyer toward his
client, the existence of such a questionable arrangement may be considered on questions
of intent and deliberate misconduct.
This 22nd day of February , 1982.
W. H. Lassiter, Chairman
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD