Please list the types of cases that may not be taken on a contingent fee basis and explain the policy behind those prohibitions.

Question

What will be an ideal response?

Answer 1

According to ABA Model Rule 1.5(d), contingency fees are not allowed to be taken in criminal cases and in domestic relations cases where the lawyer’s payment “is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement.” And, according to ABA Model Code DR 2-106(C), contingency fees are not allowed to be taken in criminal cases. Although the Model Code does not expressly prohibit contingent fees in domestic relations cases, an Ethical Consideration does declare that “contingent fee arrangements in domestic relation cases are rarely justified.” The policy behind these prohibitions is the belief that the lawyer’s objective judgment would be too much at risk if the lawyer were to have a financial stake in the outcome of a criminal case or domestic relations case. Furthermore, Courts have considered it antithetical to the public
policy of reconciliation if lawyers were allowed to have a financial stake in their client’s divorce. However, some jurisdictions, such as Illinois and Kansas, do allow lawyers to take contingency fees in post-divorce actions where an attempt is made to collect property that was supposed to be transferred as part of a property distribution.