UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 93-13
In 1984, Husband conveyed a house and lot to his parents. In Husband's and Wife's contested separation hearing in 1990, Wife claimed that this house and lot, though titled in Parents' names, was Husband and Wife's marital property. The trial judge ruled that wife failed to prove her claim and this property was not marital property.
In Husband's action to reduce alimony hearing in 1993, the trial judge allowed Wife to again pursue her claim that Parents' house was marital property. The trial judge ruled that Parents are to be included as parties and the question will now be litigated.
Parents wish to hire attorney to represent their interest in this matter, and Parents have proposed a fee which would be contingent upon the outcome of the case.
Question:
Would accepting representation of Parents on this basis be a violation of Rule 1.5(d)(1) of the Rules of Professional Conduct?
Summary:
The relief sought by Parents does not fall within the type relief set forth in Rule 1.5(d)(1); therefore, a contingency fee arrangement between attorney and Parents would not be in violation of this Rule.
Opinion:
Rule 1.5(d)(1) proscribes any fee arrangement in domestic relations matters which is contingent upon the securing of "a divorce or upon the amount of alimony or support, or property settlement in lieu thereof." The relief sought by the parents as third party litigants, a determination that property titled in their name is non-marital property, does not fall within the proscription of Rule 1.5(d)(1). Therefore, attorney may accept the contingency fee proposal of parents without violating his Rule.