Formal Opinion 75
Contingent Fee for Collection of Past-Due Support Payment
(1960)

In your letter of January 7, 1960, you request an opinion upon the propriety of a contingent fee arrangement with a client who is a divorced woman, for the collection of past due support payments under a divorce decree.

Your letter states that for the purpose of inquiry it is to be assumed that the major portion of the sum to be collected consists of support money for two minor children of the parties; that the decree of divorce was entered about five years ago, and little or no payments have been made to date. You stated the client does not have funds available to consult an attorney on a flat fee basis; that prior recourse to public officials has been unfruitful; that she will consult an attorney on a contingent fee basis in which she is willing to allow the attorney fifty percent of the amount of recovery made.

It is well-settled law in this state that a contingent fee in a divorce action is improper, whether based upon a percentage of property recovery in such divorce case, and particularly if based upon the amount of recovery for alimony or support. The reason being that such is contrary to public policy in that it discourages the reconciliation of married persons, and thus the reestablishment of the family relation. As a contingent fee based upon alimony or support payments, it has the further conflict with public policy, in that it interferes with the determination of the court as to the proper amount to be allowed for such purposes, based upon the financial conditions of the parties, and the needs of the spouse or the minor children. In re Smith, 42 Wn. 2d 188.

The problem you present does not involve a contingent fee in a divorce case. The divorce has already been entered for a period of approximately five years, and support payments provided in the decree have not been made, so that the same now constitute a judgment in favor of the divorced wife, which she is seeking to have collected by the attorney. Canon of Professional Ethics 13 provides:

"A contract for a contingent fee where sanctioned by law, should be reasonable under all the circumstances of the case, including the risk and uncertainty of the compensation, but should always be subject to supervision of the court, as to its reasonableness." In Drinker on Legal Ethics, at page 177, it is stated: "A lawyer may accept a percentage for collecting overdue alimony, but not a percentage of that to accrue subsequently.

The Canons of Ethics permit the representation of a client on a contingent fee basis, where it is sanctioned by law. Past due payments for support in a divorce decree become a judgment. Such a judgment is enforceable in the same manner as any other judgment. There is further provision in the divorce laws for enforcement of a divorce decree that give additional methods that are advantageous in enforcing divorce decrees for support. The case presented is one in which the client does not have funds to consult an attorney on a usual retainer basis, and can only secure such services on a contingent basis.

It is the opinion of this Committee that under these circumstances there is nothing in the Canons of Ethics that prohibits the lawyer collecting a past due support judgment in a decree on a contingent fee basis, even though the decree is for support for minor children.

The above canon, however, provides that the contingent fee should be reasonable under all the circumstances of the case, including the risk and uncertainty of the compensation, but should always be subject to the supervision of the court. In determining the amount of the contingent fee all of these circumstances should be taken into consideration. It should be further considered that there are additional methods for collection of a divorce decree judgment for support not available in ordinary judgments. In view of this canon and its provisions, it seems to this Committee that a contingent fee of fifty per cent may not be considered reasonable under all the circumstances of the case, which should be presented to the court, and that such a contingent fee agreement should be approved by the court. In the absence of such supervision and approval by the court, and depending, of course, upon the circumstances of the case, including the whereabouts of the defaulting husband and the possible difficulty of securing service and collecting the default support judgment, the contingent fee of fifty per cent might be excessive, and thus in violation of the Canons of Ethics. Upon establishing that the contingent fee is reasonable, it is the opinion of this Committee that it would not be contrary to, or in violation of the Canons of Professional Ethics, so long as it is confined to the collection of a past due judgment for support or alimony, or any other sum allowed by the court in the divorce decree.

[See RPC 1.5(d)]