I was asked recently if we could handle a divorce for a contingent fee, much like personal injury lawyers charge 1/3 for representing victims in accident cases. It is an interesting thought. Since 50-70% of all family law cases are pro se litigants, if a person going through a divorce or other family law case didn’t have to come up with a large retainer and be worried about paying hourly fees, wouldn’t more individuals hire lawyers willing to handle the case on a contingency fee basis?

The problem is that it is prohibited under current ethical rules in the State of Wisconsin. SCR 20:1.5 FEES states the following:

….(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee;

(1) in any action affecting the family, including but not limited to divorce, legal separation, annulment, determination of paternity, setting of support and maintenance, setting of custody and physical placement, property division, partition of marital property, termination of parental rights and adoption, provided that nothing herein shall prohibit a contingent fee for the collection of past due amounts of support or maintenance or property division.

The footnote to the rule reads as follows; “(6) Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.”

So, while the layperson may not understand why they can’t hire a family lawyer to handle their case on a contingency contract, it is clear that the ethical rules governing attorneys in the state of Wisconsin prohibit charging a contingent fee. The logic in part, is that the divorce attorney becomes vested in the case and perhaps breeds continued litigation as opposed to settlement. Further, if the lawyer is dependent on the amount of support procured or property division in the estate as the basis for the fee, on a smaller case, does the lawyer do a less quality job for the client where they are going to make less money, as opposed to a large estate or where significant amounts of support are involved, where the lawyer is likely to make significant more amount of money.