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