The Florida Bar
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OPINION 87-3
(October 15, 1987)
The attorney's fee in a dissolution of marriage action may be made contingent upon the court ordering the opposing spouse to pay the fee.

RPC: 4-1.5(D)(3)(a)
Statutes: F.S. 61.052(3), 61.16
Cases: Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner, 386 So.2d 1277 (Fla. 3d DCA 1980); Bevacqua v. Bevacqua , 412 So.2d 435 (Fla. 4th DCA 1982); Canakaris v. Canakaris , 382 So.2d 1197 (Fla. 1980); Irwin v. Irwin , 402 So.2d 1353 (Fla. 4th DCA 1981); Wiggins v. Wiggins , 446 So.2d 1078 (Fla. 1984)

The inquiring attorney represents clients involved in dissolution of marriage actions. She asks whether it would be ethically proper to accept employment from a client under a contract whereby a client's obligation to pay the attorney is contingent upon the court's award of attorney's fees from the other spouse.

Rule 4-1.5(D)(3)(a), Rules Regulating The Florida Bar, provides:

A lawyer shall not enter into an arrangement for, charge, or collect:

(a) Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof[.] [Emphasis added.]

The fee agreement proposed by the inquiring attorney is not prohibited by the above rule.

Florida statutes governing dissolution of marriage proceedings provide that the trial court may, in its sound discretion, make appropriate orders for payment of attorney's fees by one spouse to the other. F.S. 61.16, 61.052(3). The purpose of the statutes is to ensure that the parties are on an equal footing with regard to securing competent counsel. Canakaris v. Canakaris , 382 So.2d 1197, 1205 (Fla. 1980); Barranco, Darlson, Daniel & Bluestein, P.A. v. Winner , 386 So.2d 1277, 1279 (Fla. 3d DCA 1980).

An order awarding fees may be entered at any time during the proceedings. An order of temporary fees may be entered at the outset of the proceedings, with additional fees ordered at final judgment. F.S. 61.16; Bevacqua v. Bevacqua , 412 So.2d 435 (Fla. 4th DCA 1982); Irwin v. Irwin, 402 So.2d 1353 (Fla. 4th DCA 1981). The filing of a voluntary dismissal by the petitioner does not divest the court of authority to assess a reasonable attorney's fee to be paid by one of the parties to the other. Wiggins v. Wiggins , 446 So.2d 1078 (Fla. 1984).

A contract that makes the client's obligation for the attorney's fee contingent upon the court's entry of a fee award against the other party furthers the legislative purpose without violating Rule 4-1.5(D)(3)(a). The rule prohibits contingent fees only when the contingency is the securing of a divorce or the amount of alimony, support or property settlement. Neither of these contingencies is involved in a fee made contingent upon a fee award against the other party. Since the fee order may be entered at the outset of the proceedings or despite voluntary dismissal of the proceedings, the fee clearly is not contingent upon the securing of a divorce. Obviously the fee likewise is not contingent upon the amount of alimony, support or property settlement.

Contingent fees have been condemned and prohibited in divorce cases because they are seen as pitting the lawyer's interests against those of the parties and of society. A fee contingent upon the securing of a divorce gives the lawyer an interest in discouraging or thwarting reconciliation of the parties, contrary to the interests of the parties and of society. A fee contingent upon the amount of support or property settlement has the same effect. In addition, the lawyer would be encouraged to maximize the amount of support or property awarded the client, perhaps sacrificing other interests of the client (e.g., child custody). Neither of these evils is presented by a fee contingent on a court order requiring the other party to pay. Rather, such a contingent fee serves the desirable purpose of ensuring that the party with lesser means is able to secure competent counsel to protect that party's interests and, indirectly, the interests of society.



[Revised: 08-24-2011]