KBA E-364

Question: May a lawyer take a divorce case on contingent fee?

Answer: No. See Rule 1.5(d)(1).

Question: May a lawyer take a contingent fee in a divorce case if the only remaining issues involved are property settlement issues?

Answer: No. See Rule 1.5 (d)(1). There are conflicting views on this issue. Members of the Hotline Committee have given conflicting opinions, and the law is different from state to state. However, the Committee is persuaded by the reasoning in Meyers v. Handlon , 479 N.E.2d 106 (Ind. App. 1984) that contingent fees in this context are unnecessary and undesirable.

Question: May a lawyer take a contingent fee in a case arising from a divorce case, (1) involving the recovery of money or property the payment of which is in arrears, or (2) in a case in which marital assets are newly discovered after the action is final.

Answer: Yes. (1) A contingent fee may be paid in a case involving the recovery of liquidated sums in arrearage which have been or are capable of being reduced to judgment. Rule 1.5(d)(1). (2) If this can fairly be described as a new case, then a reasonable contingent fee may be appropriate.

Question: May a lawyer take a contingent fee to recover past due child support?

Answer: Yes. Rule 1.5(d)(1). If these are liquidated sums in arrearage, which have been or are capable of being reduced to judgment, then this may be appropriate.

RICHARD H. UNDERWOOD

ETHICS COMMITTEE CHAIR