¶ 1 I concur in the refusal to impose discipline on this lawyer. I must dissent, however, to this Court's failure to articulate a coherent rule to guide lawyers concerning contingent fees in probate matters. As both the majority and the dissenting opinions make some excellent points which are not mutually exclusive, I believe that there is middle ground on which to rest the disposition of this matter.
¶ 2 The problem with a contingency fee in this probate proceeding is that there are two things going on. First, the lawyer is to perform tasks for the personal representative. Second, the lawyer may have to defend the will on behalf of the personal representative. The contingency contract in this matter treated both things as one. The rule should be, as the dissent advocates, that the contingency fee agreement may apply only to the contingency of a will contest, not to the probate itself.
¶ 3 I would, however, give this lawyer the benefit of the doubt as to this contract. Southard v. MacDonald, 360 P.2d 940, 944 (Okla. 1961), unequivocally rejected the notion that a contingent fee contract was void because it involved a probate proceeding. That action, however, involved the representation of an heir who challenged a will in probate. Thus, I would apply the rule articulated in the dissent prospectively to future Bar disciplinary proceedings in which a lawyer attempts to collect a contingency fee for efforts in merely performing tasks for the personal representative.