Formal Opinion 116
(1963)
Contingent Fees in Divorce Proceedings

You have requested an opinion regarding the propriety of an attorney representing the defendant husband in a divorce proceeding under the following circumstances. The defendant is 56 years of age and has no available assets and is finding employment difficult. The wife contends that he is not entitled to any portion of the assets under her control although she is a woman of very substantial means. The defendant, although able to pay costs has no way of paying attorney’s fees except out of the recovery of a portion of the marital property in the divorce proceedings. He is willing to pay a substantial fee out of the recovery provided he succeeds in the litigation. Extensive investigation of accounts covering a 13 year period would be required in preparation for the trial and the trial would probably consume from one to two weeks in court. The question is whether the attorney may properly represent this defendant under an agreement that he will be paid a reasonable fee out of the first proceeds of the property recovered for the defendant in the divorce proceedings but that no fee will be payable if there is no recovery.

The Committee is of opinion that the Supreme Court of the State of Washington has determined that such an arrangement would be unethical. In re Smith, 42 Wn. 2d 188.

[See RPC 1.5(d)(1)]