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Opinion #15. Advertised Fee for Uncontested Divorce
Issued by the Professional Ethics Commission
Date Issued: October 15, 1980
Question
The Commission has been asked to define the circumstances under which an attorney would be justified in departing from an advertised flat fee for an uncontested divorce without risking a charge that the advertisement had been misleading. The inquiring attorney asks whether a fee advertised for an uncontested divorce would be applicable only to a divorce action uncontested only at the outset, or to a divorce action heard as an uncontested matter by the Court, and whether the advertised fee could be abandoned if substantial negotiation and argument proved necessary to handle the divorce, even though it was ultimately heard as an uncontested matter by the Court.
Opinion
The Commission has concluded that a fee advertised for uncontested divorces must be adhered to with respect to any divorce action heard by the Court as an uncontested matter, regardless of the amount of negotiation devoted to achieving that result. Conversely, it is the Commission?s opinion that a contest before the Court over any issue at any stage of the proceedings, will remove the case from the uncontested category. Clearly, the mere filing of a complaint does not determine whether an action will be contested or not.
Thus, if the defendant files and brings on for hearing a motion for an order pending divorce, or if the defendant files no answer but appears and contests such issues as child support, custody, and the division of marital property, the divorce has become a contested matter. Conversely, if a motion for an order pending is filed but never heard, or an answer is filed but the divorce is nonetheless heard as an uncontested matter by the Court, the divorce remains uncontested. The filing of pleadings alone can be but a formal step to preserve the right of the defendant to contest the divorce.
It should be obvious that the labels contested and uncontested have very little to do with the amount of time an attorney may spend upon a domestic relations case. It is, however, equally obvious than an objective test to determine whether an advertised fee for a divorce is misleading and to determine whether an attorney is justified in departing from an advertised fee is highly desirable if it is possible. The nature of the Court proceedings can and should provide such a test. In most cases they will be a fair measure of the amount of time required for the case.
Although an attorney may, in a few cases, spend a great deal more time than anticipated to earn a fee that has been advertised for uncontested divorces, that is simply a disadvantage to advertising and charging flat rates for such cases that must be accepted. If an attorney wishes to reserve the right to make special fee arrangements in cases that may, for example, involve substantial property settlements, although technically uncontested, appropriate language can be inserted in an advertisement to warn the public of that possibility.
The inquiring attorney suggests that a lawyer advertising a flat fee for uncontested divorces may, by appropriate pleading, be able to create a contest where none would occur otherwise. The attorney is, of course, always obliged to carry out the lawful instructions of the client, and seek the client?s lawful objectives. If in doing so a contest over divorce is precipitated, the responsibility can justifiably be placed on the client. If, on the other hand, an attorney deliberately misinterprets the client?s instructions, or manipulates a litigated matter, whatever the nature of that matter, so as to increase the size of the fee that can be charged, appropriate disciplinary measures are available.
