In this case we are concerned only with whether the facts of the case gave rise to a retaining lien. Mrs. Morfeld argues that a valid contract is necessary to support the claim of lien and since the contract in this case for a contingent fee is invalid under the great weight of authority, it follows that Andrews could not assert a lien and his retention of the stock certificates was wrongful. We have no desire to disagree with the rule adopted by the great majority of decisions, said by counsel to represent the holding of some 28 different states, and as did the Supreme Court of Oregon in Hay v. Erwin, 244 Or. 488, 419 P.2d 32, 33 (1966) "join the vast majority of the courts and hold that contingent fee contracts in divorce proceedings are invalid." We think that counsel mistakes the effect of such a holding as applied to the facts of this dispute.

The Board of Governors of the State Bar unanimously made the same finding and recommended that this court discipline the accused. In Hay v. Erwin, 244 Or. 488, 490, 419 P.2d 32 (1966), we held a contingent fee contract in a divorce proceeding was invalid. We reprimanded attorneys for entering into such a contract in In re Pedersen and Spencer, 259 Or. 429, 486 P.2d 1283 (1971).

We agree that the accuseds acted improperly in entering into a contingent fee contract with their client. We held in Hay v. Erwin, 244 Or. 488, 419 P.2d 32 (1966), that contingent fee contracts in divorce proceedings are invalid. However, in this case the record shows that Spencer and Pedersen were not aware of the proscription against such agreements.

The Supreme Court has held that contingent attorney fee arrangements are void as against public policy only under narrow circumstances. See, e.g., Hay v. Erwin, 244 Or 488, 490, 419 P2d 32 (1966) (historically well settled that contingent arrangement is void in divorce proceedings because fee incentive promotes divorce and discourages reconcilation); Fisher v. Lane, 174 Or 438, 445-46, 149 P2d 562 (1944) (contingent pay to justice of the peace for successful outcomes adversely affected judicial neutrality). Those holdings are inapplicable to an enhanced-fee clause in a contingent-fee contract that has well accepted use in tort cases.

In still others, quantum meruit recovery has been permitted where the contingent fee arrangement was entered into after the divorce action had already been commenced. (See Hay v. Erwin (1966), 244 Or. 488, 419 P.2d 32; Morfeld v. Andrews (Wyo. 1978), 579 P.2d 426; Guenard v. Burke (1982), 387 Mass. 802, 443 N.E.2d 892.) However, the mere existence of a contrary rule in foreign jurisdictions does not persuade us toward repudiation of so well established a rule as the one here in Illinois.

The reason cited in virtually every case dealing with this issue is the State's interest in preserving the marital relationship and discouraging divorce. Coons v. Kary (1968), 263 Cal.App.2d 650, 69 Cal.Reptr. 712, 713; In Re Wright (1982), 89 Ill.2d 498, 61 Ill.Dec. 140, 434 N.E.2d 293, 294; Barelli v. Levin, supra; Aucoin v. Williams (1974), La. App., 295 So.2d 868, 873; Guenard v. Burke (1982), 387 Mass. 802, 443 N.E.2d 892, 895; Avant v. Whitten (1971), Miss., 253 So.2d 394; Hay v. Erwin (1966), 244 Or. 488, 419 P.2d 32. It is thought that a contingent fee contract in contemplation of divorce gives an attorney some incentive to actually promote the divorce or hinder possible reconciliation. Such a financial interest in derogation of marriage offends public policy.