It is ethical to charge contingent rates as long as the rate is appropriate and reasonable and the customer has been fully informed of the availability of alternative billing arrangements. When an attorney is asked to process a divorce action initiated by another lawyer who no longer represents the client, the lawyer must determine whether or not the marriage is redeemable before considering whether the action is an action in which a contingent fee agreement might be appropriate. Although some statutes provide for the discretionary award of attorneys' fees in dissolution of marriage and child custody proceedings, such statutes are not intended to be the exclusive mode of compensation of lawyers in such matters. We have not found any express California authority that addresses the appropriateness of an attorney entering into a contingent fee agreement where fees are based on a percentage of spousal or child support that will be earned in the future.
However, these types of agreements are at the discretion of the lawyer and the client, and can only be used in situations where the winning party is entitled to recover the attorney's fees from the losing party. In circumstances (where it is unlikely that the custodial parent will be able to recover reasonable attorneys' fees pursuant to section 4380, subdivision (c) of the Civil Code; (where the custodial parent cannot pay reasonable attorneys' fees to maintain an action to enforce an order of existing child support; and (where the action will create an expired child support reserve, entering into a contingent fee agreement is not, in and of itself, inappropriate. The amount required for child support cannot be reduced by allowing the deduction of child support or the allocation of a portion of such support money for payment of attorneys' fees, which is also the duty of the court to make compensation for attorneys' fees as part of the child's right to maintenance. Even after a lawyer has determined that a contingent fee agreement is appropriate in the circumstances of a particular case, the lawyer must take steps to ensure that the contingent fee agreement does not preclude future reconciliation.
