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Advisory Opinion 36

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State Disciplinary Board
Advisory Opinion No. 36
September 23, 1983

Contingent Fees in Divorce Cases

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Question Presented: Whether it is ethically proper for an attorney to enter into a contingency-fee arrangement in a divorce case.

The question presented for resolution by this Board involves questions of law as well as ethics. It should be noted that the Georgia Appellate Courts have consistently held that contingency fee arrangements in divorce cases are void as against public policy, Evans v. Hartley, 57 Ga. App. 598 (1938); Fleming v. Phinizy, 35 Ga. App. 792 (1926); and that similar arrangements in cases to collect future child support are likewise invalid, Thomas v. Holt, 209 Ga. 133 (1952). The courts in Georgia have not considered the question of whether contingency fees are proper in an action to enforce past due alimony or child support.

The ethical rules presently applicable to this inquiry are DR 5-103, EC 5-7 and DR 2-106 and EC 2-20.

Canon 5, DR 5-103 and EC 5-7 pertain to the ethical propriety of contingency fees in general. These ethical guidelines discourage lawyers from accepting cases on a contingency fee basis to avoid the possibility of an adverse effect on the lawyer's independent professional judgment. While recognizing that a contingency-fee arrangement gives a lawyer a financial interest in the outcome of the litigation, EC 5-7 states that "a reasonable contingency fee is permissible in civil cases because it may be the only means by which a layman can obtain the services of a lawyer of his choice." This Rule, however, cautions a lawyer to enter into a contingent fee arrangement only in those instances where the arrangement will be beneficial to the client.

The question presented by this inquiry is directly addressed by EC 2-20. In pertinent part, this Ethical Consideration provides that contingent-fee arrangements in domestic relation cases, are rarely justified "because of the human relationships involved and the unique character of the proceedings."

Applying the above-cited authorities to the question presented, it is the opinion of this Board that a contingent fee arrangement in a divorce case is against public policy and is therefore improper. It should be noted that this opinion is limited to the type of fee arrangements prohibited by the Georgia courts in the cases cited above, and does not address the ethical propriety of a contingency arrangement where the matter is limited solely to the collection of a liquidated amount.

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