LEO: Advertisement and Solicitation -  LE Op. 1229

 

Advertisement and Solicitation - Contingent Fees - Domestic

Relations Practice: Advertisement for Child Support Arrearages

Collections on a Contingent Fee Basis.

 

April 25, 1989

 

You have asked the Committee to consider the propriety of an advertising

brochure directed to those members of the general public in need of legal

advice for the collection of child or spousal support arrearages. You are

particularly interested in knowing the appropriateness of the language

contained in the final paragraph of the brochure, which states:

 

Under some circumstances, if you are unable to afford a lawyer to

represent you in collecting what is owed, you may be able to qualify for a

contingent fee arrangement which would allow a lawyer to represent you for

a percentage of the funds which are recovered.

 

The Disciplinary Rules governing public advertisement and solicitation of

professional employment are DR:2-101 and DR:2-103, which provide that a

lawyer shall not participate in the use of any form of public

communication nor shall he solicit employment from a nonlawyer who has not

sought his advice regarding employment if such communication or

solicitation contains a false, fraudulent, misleading or deceptive

statement or claim, or if such communication has a substantial potential

for or involves the use of coercion, duress, intimidation, unwarranted

promises of benefits, overpersuasion, or harassing conduct in light of the

sophistication of the legal matter, and the physical, emotional, and

mental state of the person to whom it is directed. (See LE Op. 862) In

addition, DR:2-105 states that a lawyer's fees shall be reasonable and

adequately explained to the client.

 

As for the final paragraph of the brochure, the Committee would opine

that the language indicating circumstances under which the contingency

arrangement may be permissible may be misleading, since it has long been

established in the legal community that a contingent fee arrangement in

domestic relations matters is improper. The Committee would direct your

attention to EC:2-22 which states in part that, "because of the human

relationships involved and the unique character of the proceedings,

contingency arrangements in domestic relations cases are rarely justified."

The Committee opined in LE Op. 423 that it was ethically improper to

enter into a fee arrangement where the legal fee would be based on a

percentage of the court awarded sum or the lump sum property settlement to

the client.

 

The Committee is of the view, however, that the advertisement would not

be improper if it clearly indicates that a contingency fee is generally

permissible in cases where child support arrearages have been reduced to

judgment. An advertisement which suggests that contingency fees are common

or permissible in most other domestic relations cases is likely to be

misleading because, in fact, contingency fee arrangements are only rarely

proper. The Committee would direct your attention to LE Op. 667 and LE

Op. 850, which enumerate the special circumstances under which a

contingency fee arrangement for the collection on a judgment of child

support arrearages is acceptable. Notwithstanding the foregoing of

disclosure, the Committee would advise that an attorney is still required

to explain to the individual clients prior to accepting employment that

the client is not relieved of liability for any costs and expenses in

connection with the litigation and case file. Furthermore, the Committee

believes the attorney also must be mindful that the contingency fee

arrangement must be a reasonable one and must be adequately explained to

the client.

 

The Committee cannot opine as to the veracity of the statistical

information presented in the scenario recited in the brochure and will

assume the information contained therein to be true and in compliance with

 DR:2-101 and DR:2-103 for the purposes of this inquiry. However, the

Committee would caution an attorney to guard against generalized

statements regarding predictions of outcomes which tend to be deceptive or

misleading and produce unrealistic expectations in particular cases. That

is the type of advertisement which may bring about distrust of the law and

lawyers as well as undermine the public confidence in the legal system. (

See EC:2-10 and EC:2-11)

 

Committee Opinion April 25, 1989