You were hurt, you are out of work, and the idea of paying a lawyer by the hour is the reason you have not called one. That is exactly the problem a contingency fee in South Carolina is built to solve — and the rule governing it is more protective of you than most people realise.

What the rule requires

Contingency fees are governed by Rule 1.5 of the South Carolina Rules of Professional Conduct, adopted as Rule 407 of the South Carolina Appellate Court Rules. Subsection (c) sets out what the agreement must contain:

A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.

Every clause there protects the client. Written and signed, so nobody relies on memory. Percentages stated separately for settlement, trial, and appeal, because the work differs enormously. And expenses identified, with the order of operations spelled out.

The rule adds two more duties. The agreement “must clearly notify the client of any expenses the client will be expected to pay.” And at the end of the matter the lawyer must give the client a written statement showing the outcome and, if there is a recovery, the remittance and how it was calculated.

Fees and costs are not the same thing

This is the distinction that causes the most confusion, and it is why Rule 1.5(c) makes the order of operations an express term.

The fee is the percentage your lawyer earns. Costs are what the case spends — filing fees, records, deposition transcripts, expert witnesses, service of process. Whether the percentage is calculated before or after those costs come out of the recovery changes your net, sometimes materially.

Ask the question directly before you sign, and check that the answer appears in the agreement. The rule requires it to be there.

Where a contingency fee is not allowed

Rule 1.5(d) prohibits two arrangements outright, and one of them matters to family law clients.

A lawyer may not charge a fee in a domestic relations matter where the payment or amount is contingent on securing a divorce, or on the amount of alimony or support, or a property settlement in lieu of those. There is one carve-out: a lawyer **may** charge a contingency fee for collecting past-due alimony or child support.

The second prohibition is a contingent fee for representing a defendant in a criminal case.

So if you are asking about a divorce, the answer is that a contingency fee is not available for the divorce itself — though it may be available to chase arrears someone already owes you.

Reasonableness is a live requirement, not a formality

Rule 1.5(a) prohibits a lawyer from making an agreement for, charging, or collecting “an unreasonable fee or an unreasonable amount for expenses,” and lists the factors that bear on reasonableness — the time and labour required, the novelty and difficulty of the questions, the skill required, whether the work precludes other employment, the fee customarily charged in the locality, and the amount involved and the results obtained, among others.

A percentage is not immune from that requirement because you agreed to it. The reasonableness standard sits over the whole arrangement.

What a contingency fee changes about your case

• —Your lawyer’s incentive is aligned with the size and speed of your recovery.
• —You are not billed while the case is investigated, negotiated, or litigated.
• —The firm carries the cost risk of the case up front, which is why costs are addressed separately in the agreement.
• —At the end you receive a written statement showing the outcome and how the remittance was calculated — the rule requires it.

If you are weighing whether to involve a lawyer at all, our post on why you need a lawyer after a car accident in South Carolina covers what changes when one is involved.

Frequently asked questions

Do I pay anything if we lose?

Under a contingency fee you owe no attorney’s fee if there is no recovery. Case costs are a separate question, and Rule 1.5(c) requires the agreement to tell you clearly what expenses you may be expected to pay — read that clause before signing.

Is the percentage the same all the way through?

Not necessarily. Rule 1.5(c) requires the agreement to state the percentages for settlement, trial, and appeal separately, because a case resolved in negotiation involves very different work from one tried and appealed.

Can I use a contingency fee for my divorce?

No. Rule 1.5(d)(1) bars a fee contingent on securing a divorce or on the amount of alimony, support, or a property settlement in lieu of those. A contingency fee is permitted for collecting past-due alimony or child support.

How do I know the fee is fair?

Rule 1.5(a) forbids an unreasonable fee and lists the factors that go to reasonableness, including the fee customarily charged in the locality for similar services. Ask how the percentage compares locally, and expect a straight answer.

Once you understand the fee, the next question is usually what the case is worth — see what damages you can claim in a South Carolina personal injury case.

Talk to a South Carolina personal injury attorney

A consultation costs you nothing, and understanding the fee agreement is part of deciding whether to bring a claim at all. Klok Law Firm handles injury claims in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. Fee arrangements vary by firm and by case. For advice about your specific situation, contact Klok Law at (843) 701-1695.