A recent law.com story, “Judge Endorses Divorce Lawyer’s Use of ‘Success Bonus’ to Enhance Fees” reports that a divorce lawyer’s retainer agreement that included an optional “success bonus” isn’t unethical, a judge 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 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 contingency fee agreement and it wasn’t unethical, the story says.  The Connecticut Law Tribune describes his opinion a “far-ranging legal essay” that found little in the way of public policy to support the ban of contingent fees in divorce cases.  Tierney found a 1951 case claiming a contingency 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.