Divorce Lawyer’s ‘Success Fee’ Is Upheld; Charge Was $1,200 an Hour in One Case
A divorce lawyer’s retainer agreement that included an optional “success bonus” isn’t unethical, a judge has ruled in an ethics case filed by Connecticut disciplinary officials.
The success fee collected by lawyer Gary Cohen of Greenwich, Conn., amounted to $1,200 an hour in one case, according to statewide disciplinary counsel Mark Dubois. His ethics grievance against Cohen cited that instance, along with two other client complaints that were based solely on the language of his retainer agreement, the Connecticut Law Tribune reports.
The agreement reads: “In addition to the hourly charges described, we may request an additional reasonable charge for matters of extraordinary difficulty, or which require special expertise or the giving of special priority treatment. This additional charge is subject to your approval after discussion with you. It cannot be imposed unless you agree to it.”
Ruling on a motion to strike the two counts based only on the contract language, Judge Kevin Tierney of Stamford said the success bonus wasn’t a contingent fee agreement and it wasn’t unethical, the story says. The Connecticut Law Tribune describes his opinion as a “far-ranging legal essay” that found little in the way of public policy to support the ban on contingent fees in divorce cases.
Tierney found a 1951 case claiming a contingent fee discourages lawyers from promoting reconciliation. He noted that the decision was issued before no-fault divorce was allowed and before hourly billing became widespread.
According to Tierney, hourly billing in divorce cases is also problematic. The billable hour approach, he wrote, may present “even greater opportunity to put the attorney’s personal interest in receiving attorney fees over that of the client’s personal interest in preserving whatever was left of domestic tranquility.”
