July 28, 1995
A prospective new client spoke to you regarding collection of child support arrearages. The couple had one child, who has now reached the age of majority. The support obligor failed to pay child support for several years and a significant arrearage has accrued. The prospective client is unemployed, but has a spouse who is employed.
Based upon these facts, the question you posed to this Committee is whether or not a lawyer may permissibly collect child support arrearages under a contingent fee agreement.
It is the opinion of this Committee that, subject to certain conditions, a contingent fee agreement may be entered into to collect child support arrearages. Rule 1.5(d)(1) prohibits in domestic relations matter[s] any fee which is contingent upon the securing of a divorce or upon the amount of alimony or support... . This Rule does not specifically prohibit the use of a contingent fee to collect past due child support. It is the opinion of this Committee that a contingent fee may be used to collect past due child support subject to the following conditions:
(1) The divorce must be final;
(2) The fee agreement must be in writing;
(3) No alternative fee arrangement must be practicable because of the clients indigency;
(4) The lawyer must disclose all of the options available to the client for collecting child support arrearages and the client must have no other means of obtaining the payments;
(5) The fee must be reasonable and fair;
(6) The percentage charged must reflect the difficult~- and risks of non-recovery.
A contingent fee agreement may be used to collect past due child support if those conditions are met.
Michael S. McKnight
Chair, Ethics Committee
State Bar of South Dakota