Ethics Opinions

Opinion 09-02

Summary: A lawyer may enter a contingent fee agreement to collect past due child support following entry of a divorce judgment. The lawyer should disclose to her client the availability of free collection services from the Child Support Enforcement Division of the Massachusetts Department of Revenue and may not base any of her fee on any amounts collected through the use of the Department’s services.

Facts: Attorney has inquired whether she may enter into a contingent fee agreement with a client to collect many years of past due child support in a matter in which the divorce has become final.

Discussion: Mass. R. Prof. C. 1.5 provides that:

 

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

 

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof…

 

The Supreme Judicial Court, in Guenard v. Burke, 387 Mass. 802, 807 (1985) interpreted the predecessor rule — SJC Rule 3:05(3) — to prohibit any contingent fee agreement in a domestic relations case that was entered into prior to the entry of a final judgment of divorce, even if the contingent fee agreement applied only to disputes over property.  Prior to January 1, 1998, when the new Rules of Professional Conduct became effective, the Ethics Committee addressed the question of whether charging a contingent fee with respect to the collection of past due child support payments was permissible.  In our Opinion 94-4, we advised that contingent fees for collecting such payments were permissible in general, but were subject to a variety of conditions; as set forth in that opinion.

 

The language of Rule 1.5(d)(1) is, however, slightly different from the predecessor rule.  Specifically, Rule 1.5(d)(1) prohibits “any fee in a domestic relations matter, the payment or amount of which is contingent … upon the amount of … support ….”  That language, which is identical to the prohibition contained in the ABA’s Model Rules of Professional Conduct, could be read to prohibit a contingent fee in any case pre- or post-divorce involving the amount of alimony or support. Because of the confusion relating to the language in its Model Rule, the ABA in 2002 adopted a new Comment (now Comment 6) that adopted the majority view on this issue. The new Comment, interpreting its Rule 1.5(d) states: “This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.” We believe that the Supreme Judicial Court, for policy and uniformity reasons, would most likely be guided by the ABA’s interpretation of its Model Rule, which the SJC has adopted.

 

We believe, therefore, that Rule 1.5(d)(1) does not prohibit Attorney from entering into a contingent fee agreement to collect child support in arrears where the underlying divorce is already final and the amount of child support has been set.

 

We also note, however, that pursuant to Mass. Rule Prof., C. 1.5(a):

 

A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.  The factors to be considered in determining whether a fee is clearly excessive include the following:

 

      (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

 

      (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

                 

      (3) the fee customarily charged in the locality for similar legal services;

 

      (4) the amount involved and the results obtained;

 

      (5) the time limitations imposed by the client or by the circumstances;

 

      (6) the nature and length of the professional relationship with the client;

 

(7) the experience, reputation, and ability of the lawyer or

 lawyers performing the services; and

 

      (8) whether the fee is fixed or contingent.

 

The Child Support Enforcement Division of the Massachusetts Department of Revenue is authorized to enforce collection of both current and past due support obligations through administrative remedies, and these remedies are available to the custodial parent without charge.  We believe the availability of these services should be disclosed to the client and, pursuant to Rule 1.5(a), Attorney may not base any part of her contingent fee on the use of those services on behalf of her client. To charge a client a contingent fee based on the amounts collected through the use of the Department’s services would be “clearly excessive.”  Any contingent fee that Attorney charges, therefore, must be based solely on Attorney’s services.

 

This advice is that of a committee without official governmental status.  
 

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 15, 2009.

 

 

 

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