Informal 87-17.

• Case Date: January 13, 1988
• Court: Connecticut

Connecticut Ethics Opinion 1988. Informal 87-17. January 13, 1988INFORMAL OPINION 87-17Propriety of Contingent Fees in a Partition Action Where Two Parties Are Not MarriedYou have requested an Opinion of the Committee on Professional Ethics on the following question: Are contingent fees allowed in a partition action when a house is owned by two parties who live together but are not married? We assume by the question that the action for partition is to be brought by one of the co-owners of the house against the other co-owner with whom the plaintiff has lived but to whom he or she is not married. Rule 1.5(d)(1) of the Rules of Professional Conduct provides that a lawyer shall not enter into an arrangement for, charge or collect "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." Rule 1.5(d)(1) confines its prohibition of a contingent fee to a "domestic relations matter." Under Sections 46b-81 and 46b-82 of the Connecticut General Statutes, the superior court may make an assignment of the property or an award of alimony only pursuant to a decree "annulling or dissolving a marriage or for legal separation." Connecticut does not recognize common law marriage or accord the conventional consequences of a marriage to cohabitation arrangements not accompanied by marriage. McAnerny v. McAnerny, 165 Conn. 277, 285 (1973). We conclude the flat prohibition by the Rules of Professional Conduct in Rule 1.5(d)(1) is not applicable to the question submitted. However, the mere syllogistic analysis does not suffice. The first words of Rule 1.5 are: "(a) A lawyer's fee shall be reasonable.%" The Comment of Rule 1.5 includes the following: "...when there is doubt whether a contingent fee is consistent with the client's best interest, the lawyer should offer the client alternative bases for the fee and explain their implications..." The appropriateness of a contingent fee retainer in this context is troublesome. This is not a situation in which therewill be no source of payment of a fee, after great effort and expense, unless there is a recovery, as in the case of a personal injury suit on a contingency basis. In the submitted case, there is an assured source...