October 13, 1994
A lawyer may place an advertisement offering legal services under a trade name and that does not include the lawyer's own name.
A lawyer may represent a client in post-judgment enforcement of child support, alimony, and property settlement provisions of divorce judgments and paternity orders on a contingent fee basis, where a contingent fee is the only practical means by which the client can pursue the claim, the contingent fee is reasonable, and any court awarded fees are credited against the contingent fee.
References: MRPC 1.5(c) and (d), 7.1, 7.2(a), 7.5; RI-16, RI-28, RI-127, RI-198, RI-204.
A lawyer is considering placing an advertisement offering legal services regarding the post-judgment enforcement of child support, alimony, and property settlement provisions of divorce judgments, and paternity orders. The law firm name is a trade name, and the lawyer's name would not appear in the advertisement. Prospective clients unable to afford representation on an hourly basis would be informed of the ability to enter into a contingent fee arrangement. The Committee is asked:
- Whether the lawyer may advertise legal services under a trade name without including the lawyer's own name in the advertisement?
- Whether the trade name "Support Collection Group," when used in an advertisement offering post-judgment domestic relations enforcement services, is unethical?
- Whether the lawyer may charge a contingent fee in post-judgment domestic relations matters?
MRPC 7.5(a) states:
"(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and it is not otherwise in violation of Rule 7.1."
MRPC 7.1 states:
"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:
"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;
"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."
MRPC 7.2(a) states:
"(a) Subject to the provisions of these rules, a lawyer may advertise."
Therefore, absent any violation of MRPC 7.1 or 7.5, a lawyer may place an advertisement offering legal services under a trade name that, in and of itself, does not include the lawyer's own name. See RI-16.
Regarding the firm name, we note that the term "Group" in the firm name infers more than one lawyer is available. If that is not the case, the name is misleading and violates MRPC 7.1. Whether or not the proposed trade name "Support Collection Group" is otherwise false, fraudulent, misleading, or deceptive, is based upon facts not provided in this inquiry. The Committee is not a fact-finder.
Clearly, the proposed advertised trade name must not only comply with the provisions of MRPC 7.1, but also the provisions of MRPC 7.5, inasmuch as it must not imply a connection with a government agency or with a public or charitable legal services organization. MRPC 1.5(c) and (d) state:
"(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent-fee is prohibited by paragraph (d) or by other law. A contingent- fee agreement shall be in writing and shall state the method by which the fee is to be determined. Upon conclusion of a contingent- fee matter, the lawyer shall provide the client with a written statement of the outcome of the matter and, if there is a recovery, show the remittance to the client and method of its determination. See MCR 8.121.
"(d) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee in a domestic relations matter or in a criminal matter."
The rationale behind MRPC 1.5(d) contingent fee prohibition in domestic relations matters stems from the premise that if a lawyer were permitted to charge a contingent fee on the amount recovered for a client in a divorce case, the lawyer would be less inclined to counsel the client regarding reconciliation. However, that prohibition is not absolute. The Committee on several occasions has opined that the rationale behind MRPC 1.5(d) was not applicable to post-judgment domestic relations matters. Once a judgment of divorce has been entered, reconciliation is generally no longer an ethical constraint. See RI-28, RI-127, RI-198, RI-204
It is not unethical for a lawyer to undertake representation of a client regarding the post-judgment enforcement of child support, alimony, and property settlement provisions of divorce judgments, and paternity orders, on a contingent fee basis, where a contingent fee is the only practical means by which the client can pursue the claim, the contingent fee is reasonable, and any court awarded fees are credited against the contingent fee. Furthermore, the arrangement must be in writing pursuant to MRPC 1.5(c) and MCR 8.121(F).