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OBA Ethics Counsel

Ethics Opinion No. 299

Adopted September 18, 1981

(Readopting Advisory Opinion No. 41 Promulgated November 25, 1932)

OPINION

In a recent disciplinary proceeding there was incidentally involved a contract between a member of the bar and his client wherein the attorney's fee was made contingent upon success in securing a decree of divorce for his client, and the amount thereof, upon the value of property and money received by the client in the adjustment of property rights and as alimony, temporary and permanent.

Orally an opinion was requested as to the propriety of contingent fee contracts in divorce cases.

It is the opinion of the Board:

1. That such a contract involves a matter of public policy; that the proper maintenance of the marriage relation is a matter of public concern; that such a contract between a member of the bar and a client is against public policy and void, the sanctity of the marriage relation, the welfare of the children, the good order of society, the regard for virtue, all of which the law seeks to foster and protect, being ample reasons for declaring such contract to be void as against public policy.

2. That the entering into such a contract involves the personal interest of the member of the bar in preventing a reconciliation between the parties---a thing which the law favors and public policy encourages.

3. That a suit for divorce and for the adjustment of property rights incident thereto is not a "cause of action or claim" arising "ex contractu" or "ex delicto" within the meaning of Sec. 4101, C.O.S.1921, 5 Okl. St. Ann. § 7, but is a proceeding for the dissolution of a status in which the public has an interest and to which the state is an implied party, the adjustment of property rights being merely incidental to the dissolution of the status and not the subject matter of the proceeding.