Contingency Fee Agreements
A contingency fee agreement is the written contract between you and your attorney that defines how fees and costs will be handled. It must specify the percentage, the calculation method (gross or net), cost responsibility, and your right to terminate. Most states require it in writing.
What Are the Required Elements of a Contingency Agreement?
Direct Answer: A contingency fee agreement is the written contract between client and attorney specifying the percentage fee, how costs are deducted, the client's liability if the case is lost, and termination rights. Under ABA Model Rule 1.5(c) it must be signed by the client before representation begins.
ABA Model Rule 1.5(c) requires that a contingency fee agreement be in a writing signed by the client. The agreement must state:
- The method by which the fee is to be determined, including the percentage(s)
- The litigation and other expenses to be deducted from the recovery
- Whether such expenses are deducted before or after the contingency fee is calculated
- The scope of representation covered by the agreement
Gross vs Net Calculation
This is the single most important financial distinction in your retainer agreement. The difference can amount to thousands of dollars:
| Method | Settlement: $100,000 | Costs: $10,000 | Client Receives |
|---|---|---|
| Gross (33⅓%) | Fee: $33,333 + Costs: $10,000 = $43,333 | $56,667 |
| Net (33⅓%) | Fee: $30,000 + Costs: $10,000 = $40,000 | $60,000 |
Always ask your attorney whether the fee is calculated on the gross (total settlement) or net (settlement minus costs). If the agreement is ambiguous on this point, ask for clarification in writing before signing.
Sliding Scale Structures
Many attorneys use a tiered fee structure that increases as the case progresses through more resource-intensive stages:
- 25% — if settled during the pre-litigation demand phase
- 33⅓% — if settled after a lawsuit is filed but before trial
- 40% — if the case goes to trial
- 45% — if an appeal is necessary
Cost Responsibility
The agreement should clearly address two scenarios:
If the case wins
Advanced costs are reimbursed from the settlement. Whether they are deducted before or after the fee calculation depends on the gross/net method specified in the agreement.
If the case loses
Some agreements state the attorney absorbs all costs ("true no win no fee"). Others require the client to reimburse advanced costs regardless of outcome. This is a critical point — clarify it before signing.
Red Flags to Watch For
- No written agreement — this violates Model Rule 1.5(c) in most states
- Ambiguous gross/net language — insist on explicit clarification
- Fee percentage above 40% without clear justification
- No mention of cost responsibility on a loss
- No termination clause or penalty for switching attorneys
- Vague scope of representation (e.g., does the agreement cover appeals?)
Frequently Asked Questions
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Step-by-step from intake to settlement
Read moreCosts vs Fees
The critical distinction most people miss
Read moreAre Contingency Fees Regulated?
State bar rules and ethics standards
Read moreWhat Is a Contingency Fee?
Foundational explainer
Read moreAlternative Fee Arrangements
Hybrid, flat fee, and hourly comparisons
Read moreWhere this applies: Contingency fee rules are set state by state. Check your own state's rules before acting.
Sources for this page
Every rule stated above is based on the primary sources below. Each link goes to the legislation, court rule or regulator itself so you can check it. Last verified 2 August 2026.
- ABA Model Rule 1.5 (Fees)
Model, not law. Each state adopts its own version. Rule 1.5(d) bars contingency fees in most domestic relations matters and in criminal defence.
- Cal. Bus. & Prof. Code § 6147 (contingency fee agreements in writing)
- Tex. Gov't Code § 82.065 (contingent fee contracts in writing)
- New York Rules of Professional Conduct, Rule 1.5
Who wrote and checked this page
- Written and published by
- Edward & Amaury Solicitors (Edward & Amaury Ltd, company no. 12195443), regulated by the Solicitors Regulation Authority under no. 800525.
- Legal review
- This page has not yet been through independent legal review. It is written from the primary sources listed below, which you can check directly.
- Review dates
- Last reviewed 2 August 2026. Next review due 2 February 2027.
Fee rules change. California’s medical malpractice fee limits changed on 1 January 2023, and the QOCS rules in England and Wales changed on 6 April 2023. If you spot something out of date, tell us — we publish corrections.