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Advisory Opinion 47

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State Disciplinary Board
Advisory Opinion No. 47
July 26, 1985

Contingency Fees to Collect Past Due Alimony and/or Child Support

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: Is it ethical to charge a contingent fee to collect past due alimony and/or child support payments?

Opinion: The ethical rules presently applicable to this inquiry are EC 2-23, EC 2-20, DR 2-106, EC 5-7, DR 5-103 and Disciplinary Standard 31.

The question presented for resolution by this Board is the question specifically left unanswered in Formal Advisory Opinion 36, which held that contingent fee arrangements in divorce cases and in cases to collect future child support are against public policy and are therefore improper.

It is the opinion of the Board that it is ethically permissible for a lawyer to charge a contingent fee to collect past due alimony or child support for the following reasons: Collection of these amounts occurs after the divorce, i.e. it is a post-judgment proceeding; a suit for execution of a judgment on such arrearages is neither a "domestic relations" nor a "divorce" case; the human relationships involved and the unique character of domestic relations proceedings which generally prohibit contingent fees are not present and do not apply in these cases; and, most importantly, in many circumstances, a contingent fee arrangement may be the only means by which these vital legal rights can be enforced. Canon 2, EC 2-20 and EC 5-7.

Although it is ethically proper to charge a contingent fee to collect past due alimony or child support, the lawyer should strive to meet the following criteria:

1. A contingent fee arrangement must be the only practical means by which one having a claim for past due alimony or child support can economically afford, finance, and obtain the services of a competent lawyer to prosecute the claim (EC's 2-20 and 5-7);

2. The contingent fee must be reasonable. Guidelines for determining the reasonableness of a fee are set forth in DR 2-106.

DR 2-106 - Fees for Legal Services.

(A) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.

(B) A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee 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;

(8) whether the fee is fixed or contingent.

(C) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant in a criminal case.

3. Any court-awarded fees must be credited against the contingent fee. EC 2-23. These criteria should be carefully followed, particularly in cases seeking to collect past due child support.

This decision finds support in the opinions of at least eleven other Bar Associations. Opinion 1982-4, Legal Ethics Committee of the Dallas Bar Association (11/22/82); Opinion 80-34, Committee on Ethics of the Maryland State Bar Association, Inc. (undated); Opinion CI-828 and CI-1050U, Committee on Professional and Judicial Ethics of the State Bar of Michigan (9/2/82) (10/30/84); Opinion 88, Ethics Committee of the Mississippi State Bar (9/23/83); Opinion 405, approved by the Virginia State Bar Council (9/8/83); Opinion 82-1, Legal Ethics Committee of the West Virginia State Bar (6/18/82); Opinion 660, New York County Lawyers' Association Committee on Professional Ethics (5/4/84); Formal Ethics Opinion No. 82-F-26, Ethics Committee of the Board of Professional Responsibility of the Supreme Court of Tennessee (2/22/82); Opinion 1983-4/2, New Hampshire Bar Association Ethics Committee (9/20/83); Opinion 67, Colorado Bar Association Ethics Committee (undated).

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