ATTORNEY'S LIENS: APRACTICAL OVERVIEW I. INTRODUCTION

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1 ATTORNEY'S LIENS: APRACTICAL OVERVIEW I. INTRODUCTION The practice of law requires the lawyer to function in at least two major roles: as an attorney and advocate, and as a business person. As such, the lawyer confronts on a daily basis the dual challenge of practicing law with expertise while at the same time earning a living. Consequently, a legitimate and constant concern of lawyers is how to collect fees in a manner consonant with the practice of law as a learned profession.' When faced with the problem of fee collection, several remedies are available to the attorney. The attorney can negotiate a settlement, bring a separate suit, s employ an outside collection 1. Fee collection is a recurring problem at two stages of representing a client: prior to litigation or resolution of the problem and subsequent to litigation. In the first situation, most frequently the client discharges the attorney or the attorney chooses to withdraw and the client refuses to pay. In the second situation, the client refuses to pay after the attorney has represented the client in litigation and has obtained a judgment for the client. The early English and American courts differed sharply in their attitude towards fees. In the English courts lawyers were not allowed to maintain an action for fees. The view, as expressed by Blackstone, was that a fee was a mere gratuity which a counselor could not demand without doing injury to his reputation. See 1 W. BLACKSTONE, COM- MENTARIES 630 (G. Chase 3d ed. 1906). However, in the United States, such an attitude did not exist, as exemplified in the unanimous decision of Adams v. Stevens & Cagger, 25 Wend. 451 (N.Y. 1841). In Adams, the attorney was allowed to recover the fee as compensation beyond the nominal counsel fee established by the legislature where the client had agreed to pay a specific amount or the reasonable worth of the services. Id. at 457. The Adams court concluded that viewing counsel fees as merely honorary and gratuitous was inconsistent with "our utilitarian policy and practical notions; it has never been recognized in our country, and is in opposition to the general tenor of our laws." Id. at See, e.g., National Sales & Serv. Co. v. Superior Court, 136 Ariz. 544, 667 P.2d 738 (1983) (en banc) (attorneys and clients are encouraged to negotiate and compromise in fee disputes). 3. Id. at -, 667 P.2d at 745 (Cameron, J., dissenting) (an attorney owed a fee is not without sufficient remedy in that the attorney, like any creditor, is free to pursue payment of the debt through a separate action). See Ross v. Wells, 6 Ill. App. 2d 304, 127 N.E.2d 519 (1955) (where a lawyer brought suit against former clients to recover attorney's fees, and the court issued a subpoena duces tecum requiring production of the

2 BRIDGEPORT LAW REVIEW [Vol. 6:77 agency,' or assert an attorney's lien, 5 either a retaining lien on the client's papers 6 or a charging lien on a favorable judgment. 7 As a remedy, both liens have presented complex problems for nearly two centuries" for the courts, attorneys, and clients., client's papers). Cf. Jenkins v. District Court, - Colo. -, 676 P.2d 1201 (1984). In an action for negligence brought by the client against the attorney, the attorney counterclaimed for attorney's fees and expenses. Id. at -, 676 P.2d at The attorney brought a separate suit challenging a court order to produce the client's papers, claiming that the order was a violation of the statute on attorney's liens. Id. See also Burk v. Burzynski, - Wyo. -, 672 P.2d 419 (1983). In Burk, attorneys brought suit against a former client for past-due legal fees. The Burk court found that the attorneys were entitled to the fees and costs subject to an offset of any recovery on the claim assigned by the client. Of interest is the court's ruling that the assignment creating a security interest was valid under DR 5-103(A) of the Model Code of Professional Responsibility, which grants an attorney a lien to secure his fee. Id. at -, 672 P.2d at Informal discussion with practicing attorneys indicates that some attorneys contract with outside collection agencies to secure reimbursement of outstanding client debts, while others who fail to collect a fee through customary billing procedures simply abandon the effort. No statistics are presently available on what percentage of clients fail to pay their legal fees. 5. For a widely accepted definition of attorney's liens in general, see Everett, Clarke & Benedict v. Alpha Portland Cement Co., 255 F. 931, 927 (2d Cir. 1915). For discussion of the liens distinctive to the legal profession, see S. M. SPEISER, ArORNEYS FEES, Attorney's Liens, 16:1-16:51 (1973) [hereinafter cited as SPEISER] which provides an in-depth discussion of attorney's liens. See also JONES, THE LAW OF LIENS (3d ed. 1914) [hereinafter cited as JONES]; Britton, Attorneys' Retaining Liens, 6 J. LEGAL PROP. 263 (1981) [hereinafter cited as Britton]; Wentworth, Attorneys' Liens - A Survey and a Proposal, 35 CONN. B.J. 191 (1961) [hereinafter cited as Wentworth]; Note, An Attorney's General or Retaining Lien, 20 AM. L. REv. 727 (1886) [hereinafter cited as Note, General or Retaining Lien]; Note, Attorney's Retaining Lien over Former Client's Papers, 65 COLUM. L. REv. 296 (1965) [hereinafter cited as Note, Attorney's Retaining Lien]; Note, Attorney's Liens, 14 OR. L. REv. 536 (1935) [hereinafter cited as Note, Attorney's Liens]. See generally 7 Am. JUR. 2D Attorney's Liens 7 (1980). 6. For a discussion of retaining liens, see infra text accompanying notes For a discussion of charging liens, see infra text accompanying notes For a discussion of the historical roots of attorney's liens, see infra text accompanying notes See Morse v. District Court, 65 Nev. 275, 195 P.2d 199 (1948). The Morse court apparently felt compelled to deal at length with the history and distinguishing features of both liens because the parties failed to understand the nature of the liens. The court stated that "[tihe very obvious confusion into which the parties fall... results from their failure to distinguish clearly between a general or retaining lien and a special or charging lien." Id. at, 195 P.2d at 202. See also Hazeltine v. Keenan, 54 W. Va. 600, 46 S.E. 609 (1904) where the court resolved the dispute between attorney and client by finding that the attorney had neither a charging lien "because the notes constituting the fund were not covered in a suit," nor a retaining lien because the attorney had voluntarily transferred the notes. Id. at 605, 46 S.E. at For a discussion of more recent cases in which the complexities of the lien were at issue, see Adams, George, Lee, Schulte & Ward v. Westinghouse, 597 F.2d 570 (5th Cir. 1979), discussed at infra note 203 and accompanying text; In re Kaufman, 93 Nev. 452,

3 1985] ATTORNEY'S LIENS This Note will explore the complexities of both kinds of liens and will provide practical guidelines for attorneys who may choose to exercise the liens. 10 A brief description and historical overview" of the liens will be provided, and the nature and scope of these liens as they exist presently in Connecticut and in other jurisdictions will be analyzed. The principal cases of Connecticut will be discussed in relation to" the Formal and Informal Opinions of the Connecticut Bar Association (CBA), and in view of the modern trend toward limiting the liens, even where they are allowed statutorily. Ethical considerations outlined in the Model Code of Professional Responsibility and elucidated in 567 P.2d 957 (1977). See also Donaldson, Hoffman & Goldstein v. Guadio, 260 F.2d 333 (10th Cir. 1958) (noting the distinction between the two liens and finding that the possessory lien did not create an equitable charge which would follow the proceeds of a settlement and allow a charging lien). 10. Attorney's liens in the paper are examined with an eye to utilization purposes, i.e., when and how an attorney may assert either lien. For a state court decision illustrating the reasoning courts typically employ to sort out the attorney's rights, see Armstrong v. Zounis, 304 Ill. App. 537, 26 N.E.2d 670 (1940) (where retaining lien was impressed upon deeds of client, the attorney had no right to foreclose attorney's lien on the realty through a sale). It should be noted that, while attorney's liens are most often categorized and discussed separately in this and other research articles, the liens are not mutually exclusive. For a decision which allowed both liens to the attorney, see Borup v. National Airlines, 159 F. Supp. 808 (S.D.N.Y. 1958) (retaining lien on papers allowed along with a charging lien on the client's action in a personal injury suit). 11. For a discussion of the historical aspects of the liens, see infra notes and accompanying text. Perhaps the earliest discussion of an attorney's lien appears in Ex parte Bush, 7 Vin. Abr. 74, 22 Eng. Rep. 93 (Ch. 1734). In Ex parte Bush, Lord Chancellor Talbot enforced an attorney's lien upon papers, stating: "[tihe attorney hath a lien upon the papers in the same manner against the bankrupt, and though it does not arise by any express contract or agreement, yet it is as effectual, being an implied contract in law." Id. at 75, 22 Eng. Rep. at 94. Later, Lord Mansfield referred in dicta to the existence of an attorney's lien in Wilkins v. Carmichael, 1 Dougl. 101, 99 Eng. Rep. 70 (1779). It can be concluded that by the end of the eighteenth century the practice of protecting an attorney by a lien upon the papers and monies of the client was an established one, as evidenced by Lord Mansfield's comment: [Tihe practice [of retaining papers]...was not very ancient, but... was established on general principles of justice, and... courts, both of law and equity, have now carried it so far that an attorney or solicitor may obtain an order to stop his client from receiving money recovered in a suit in which he has been employed by him until the bill is paid. Id. at 102, 99 Eng. Rep. at 72. In the same year, in Welsh v. Hole, 1 Dougl. 238, 99 Eng. Rep. 155 (1779), a case directly involving the question of an attorney's lien, Lord Mansfield again affirmed the existence of the retaining lien. In Connecticut, most of the relevant case law dates back to the 1800's. Two leading Connecticut cases are Cooke v. Thresher, 51 Conn. 105 (1883), and Andrews v. Morse, 12 Conn. 444 (1838).

4 BRIDGEPORT LAW REVIEW [Vol. 6:77 current court decisions will also be examined. II. ATTORNEY'S LIENS Attorney's liens are classified into two categories: 12 the general retaining lien, 18 and the special or charging lien.' The retaining lien allows an attorney to withhold a client's papers, documents, or money as security for any fees and costs owed by the client to the lawyer. 1 5 The charging lien, by contrast, attaches to any judgment recovered by the attorney. 16 These protective liens, specifically available only to attorneys, were developed at common law. Today, the right of an attorney to a lien is fixed by state law. While a majority of states have codified these common law attorney's liens, 8 Connecticut 12. See Weed Sewing Mach. Co. v. Boutelle, 56 Vt. 570, 48 Am. Rep. 821 (1884) (attorney's liens are of two kinds, a possessory or retaining lien and a charging lien). See also Jovan v. Starr, 87 Ill. App. 2d 350, 231 N.E.2d 637 (1967) (recognizing two kinds of attorney's liens); Smyth v. Fidelity and Deposit Co., 125 Pa. Super. 597, 190 A. 398 (Pa. Super. Ct. 1937), aff'd, 326 Pa. 391, 192 A. 640 (1938). In Smyth, the court stated that "[a]ttorneys' liens existing at common law are divided into two distinct classes - the general or 'retaining' lien, i.e., the right of the attorney to refuse to surrender documents, papers, etc., belonging to his client, and the 'charging lien,' or the right to be paid out of a fund or judgment which he has been instrumental in recovering for his client." Id. at 601, 190 A. at 401. In a recent Alaska case, the attorney claimed both a retaining lien on papers in his possession and a charging lien on any recovery ultimately received by the client. Miller v. Paul, 615 P.2d 615, 617 (Alaska 1980). For a discussion of factors to be considered on security for release of a file, see infra note For a definition of the general retaining lien, see R. A. BROWN, A TREATISE ON THE LAW OF PERSONAL PROPERTY 109; RESTATEMENT OF SECURITY 62 (1941); 2 SPEISER, supra note 5, at 16: For a general definition of the special or charging lien, see RESTATEMENT OF SECURITY 62 (b) comments a & j (1941). Courts have made judicial determinations on the charging lien for nearly two centuries. For a discussion of applicable case law, see infra notes & See Morse, 65 Nev. at , 195 P.2d at 202 (recognizing that the special lien, unlike the retaining lien, does not depend upon the attorney's possession of the client's property). 16. Welch v. Hole, 1 Dougl. 238, 99 Eng. Rep. 155 (1779) (the first definition of the charging lien); Andrews v. Morse, 12 Conn. 444 (1838) (the attorney has a lien on the judgment and execution for his services and disbursements which will be protected by courts of law and equity). Cf. Midvale Motors, Inc. v. Saunders, 21 Utah 2d 181, 442 P.2d 938 (1968) (charging lien was denied because the client had no judgment in his favor, and, as a consequence, there was no "fruit" from the attorney's labor to which the lien could attach). 17. Sharar v. Pollia, 191 F.2d 116 (10th Cir. 1951) (in accepting the general view that lien rights are fixed by state law, Wyoming court would not analyze cases cited from other jurisdictions). 18. See Wentworth, supra note 5, at 191 (most states have codified these common-

5 1985] ATTORNEY'S LIENS has never enacted legislation allowing either a retaining or a charging lien.'" More importantly, the CBA, although recognizing the common law charging lien, has definitively stated that no common law retaining lien exists in Connecticut. s0 Case law in law liens). See, e.g., the two statutes enacted by the Colorado General Assembly creating two types of liens: COLO. REv. STAT & (1973). See also Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933). While the Collins court expressed regret that the statute on attorney's liens did not delineate the two classes more clearly, it held that the legislature intended to preserve the distinction. Id. at -, 21 P.2d at There is a variety in the state statutes. In analyzing the various state statutes, Wentworth made the following observations in Wentworth, supra note 5, at While some statutes provided the attorney with a retaining lien for the general balance of compensation, other statutes did not mention the general balance. Some statutes allowed liens on paper which comes to the attorney in his or her professional employment; others upon causes of action; and "[slome statutes extended the lien to cover money in the possession of the adverse party once notice of the lien has been given." Id. at 200. A number of statutes provided for a charging lien once the proper form of notice had been given; other statutes provided that no notice was required since commencement of the suit automatically creates a lien. For more information on statutes on attorney's liens in individual states, see generally Wentworth, supra note 5; Stevens, Our Inadequate Attorney's Lien Statutes-A Suggestion, 31 WASH. L. REV. 1 (1956). For further discussion of statutory considerations, see infra note Vermont also has no attorney's lien statute. The only state which does statutorily authorize attorney's liens in the Second Circuit is New York. See N.Y. JUD. LAw 475 (McKinney 1983). While there is no Connecticut statute on attorney's liens, Connecticut has enacted legislation regarding liens in general. See CONN. GEN. STAT (a)-49-92(f) (1983). The state has also made statutory provisions for several specific kinds of liens. See, e.g., CONN. GEN. STAT (1983) (hotel keepers); CONN. GEN. STAT (1983) (animal keepers); CONN. GEN. STAT (1983) (clothing storage or cleaning). The most extensive Connecticut legislation in this area regards both mechanics liens, CONN. GEN. STAT to (1983) (attachment of real property to recover for labor and materials), and judgment liens, CONN. GEN. STAT to (1983) (providing that a judgment creditor may place a lien for his judgment on real estate of the debtor, which in effect creates a statutory mortgage). For Connecticut case law relating to specific liens, see Fishell v. Morris, 57 Conn. 552, 18 A. 717 (1889) (CONN. GEN. STAT giving a lien to a keeper of horses and cattle was lost when the horse was sold while out of the keeper's possession); Beardsley v. Beecher, 47 Conn. 408 (1879) (because the lien on land attached in a suit in which the judgment rendered was a statutory mortgage, the lien was not dissolved by insolvency proceedings on the part of the debtor). The Connecticut Supreme Court reaffirmed the validity of the Beardsley decision in City Nat'l Bank of Conn. v. Traffic Eng'g Ass'n, 166 Conn. 195, 348 A.2d 637 (1973) (holding that judgment lien on realty was not invalid because lien was filed after a judgment of foreclosure by sale). 20. CBA Comm. on Professional Ethics and Grievances, Formal Op. 31 at 58 (1978). The charging lien has been allowed in Connecticut. See, e.g., Cooke, 51 Conn. at 105 (attorney may assert special or charging lien against a judgment fund which he had produced when the client had agreed that he should have the lien). A more contemporary Connecticut case on liens is Walker v. Hartford Realization Co., 74 F.2d 56 (2d Cir. 1934) (bill to impress lien in favor of attorney on assets of corporation states a cause of action).

6 BRIDGEPORT LAW REVIEW [Vol. 6:77 Connecticut is inconclusive as to the existence of a retaining lien." 1 A. Historical Overview The first use of liens can be traced to the historical Jewish legal practice of the shetar, a written credit agreement, which was introduced into the English legal system following the Norman Conquest. 2 The concept of a lien allowing a creditor to proceed against the goods and land of a defaulted debtor 23 was alien to English law, since Christian creditors were not permitted to have rights in land they did not possess. 2 4 The incorporation of this concept into English practice radically changed the socio-economic basis of feudal society and established the power of liquid wealth in place of land holding. 5 Later, the common law recognized liens, such as the lien of an inn-keeper on a guest's chattels. 26 Historically, the retaining lien was first discussed in a 1734 case, 2 7 but the exact date on which the charging lien originated is not readily ascertainable because the lien first arose as a mere 21. There is no recent holding which would support the existence of a retaining lien doctrine. See Andrews, 12 Conn. at 446. "We do not say, nor do we believe, that attorneys in any case have a lien upon the judgments and papers of their clients similar to that which manufacturers and others have upon goods and moneys in their hands." Id. But see Hagearty v. Burns, 4 Conn. Supp. 505, affd sub. nom. Hagearty v. Ryan, 123 Conn. 372 (1937) (where the superior court stated that the attorney's lien recognized in this state is a retaining lien). Id. at See generally Shapiro, The Shetar's Effect on English Law-A Law of the Jews Becomes the Law of the Land, 71 Gao. L.J (1983) (discussing the historical development of the lien on property). 23. See J. RABINOWITZ, JEWISH LAW (1956). 24. See F. POLLOCK & F. W. MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I 469 (reissued 2d ed.). 25. See H. G. RICHARDSON, THE ENGLISH LAW UNDER ANGEVIN KINGS 94 (1960). 26. See JONES, supra note 5, at See Ex parte Bush, 7 Vin. Abr. at 74, 22 Eng. Rep. at 93. Four decades after Ex parte Bush was decided, Lord Mansfield referred in dicta to the existence of an attorney's lien. See Wilkins v. Carmichael, 1 Dougl. 101, 99 Eng. Rep. 70 (1779), holding that the captain of a ship had no lien upon the ship for his wages. The attorney for the defendant-captain analogized his client's position to that of attorneys "who cannot be compelled to deliver up the deeds and papers of their clients, till they are paid." Id. at 102, 99 Eng. Rep. at 72. Later in the same year, Lord Mansfield decided Welsh v. Hole, 1 Dougl. 238, 99 Eng. Rep. 155 (1779), a case which directly involved the question of whether or not an attorney had a lien on money recovered by his client for his bill of costs.

7 19851 ATTORNEY'S LIENS request by the attorney to be paid out of the proceeds of the judgment. 25 However, the charging lien appears to have existed in England prior to 1789, as did the retaining lien. 29 The liens, first established in equity, were later recognized at law. Today both liens exist either by legislation or by judicial decision in almost every jurisdiction." 0 The Connecticut courts have recognized the charging lien several times,"' most notably in the early case of Andrews v. Morse. 3 2 B. The General or Retaining Lien 1. Nature of the Lien Possession is the key element of the general lien 3 and is the most significant feature distinguishing it from the charging lien, which attaches to a judgment fund not in the attorney's hands." Because the lien has always been regarded as "passive," a mere right of retainer, 36 the lien cannot actively be enforced." The 28. See Note, Attorney's Liens, supra note 5, at 542. For a discussion of judicial attitudes regarding attorney's fees, see supra note Welsh v. Hole, 1 Dougl. 238, 99 Eng. Rep. 155 (1779) (attorney has lien on money recovered by his client for his bill of costs). See also Wilkins v. Carmichael, 1 Dougl. 101, 99 Eng. Rep. 70 (1979), where Lord Mansfield observed "that an attorney or solicitor may obtain an order to stop his client from receiving money recovered in a suit in which he had been employed... until the bill is paid." Id. at 104, 99 Eng. Rep. at 72; JONES, supra note 5, at For discussion of statutory considerations, see supra notes and infra note On the question of set-off against an attorney's lien, the leading case in Connecticut was decided in See Rumrill v. Huntington, 5 Day 163 (1811), discussed at infra note 154 and accompanying text Conn. 444 (1838). 33. For recent cases describing the essential elements of an attorney's lien, see, e.g., In re Southwest Restaurant Sys., 607 F.2d 1243 (9th Cir. 1979), cert. denied, 444 U.S (1980); United States v. J. H. W. & Gitlitz Deli & Bar, 499 F. Supp (S.D.N.Y. 1980). See also Nichols v. Pool, 89 Ill. 491 (1978) (possession of papers is indispensable and voluntary surrender of papers releases the lien); Northrup v. Hayward, 102 Minn. 307, 113 N.W. 701 (1907) (dictum) (lien is divested upon surrender to the owners of the property in possession); Hazeltine, 54 W. Va. at 605, 46 S.E. at 611 ("The very life of the lien depends on the continued retention of the article, because the lien is in terms and nature a thing fastening itself on the very thing itself."). See generally JONES, supra note 5, at For discussions of the general characteristic of the retaining lien, see Lustig, Attorney's Liens, 7 CLEv.-MAR. L. REV. 502 (1958); Note, Attorney vs. Client: Lien Rights and Remedies in Tennessee; 7 MEM. ST. U.L. REv. 435 (1977). 35. See Frazee v. Frazee, 104 Idaho 463, 660 P.2d 928 (1983). The court stated that "[s]uch a retaining lien is passive and not enforceable for foreclosure and sale." Id. at

8 BRIDGEPORT LAW REVIEW [Vol. 6:77 essence of the lien is nothing more than a right to retain the client's property until the client pays. s7 As a consequence of its passivity, the lien's effectiveness is directly related to the degree of embarrassment, worry or inconvenience caused to the client. 3 " If the papers or property are of slight or no value to the client, the force of the lien will be minimal or valueless. 39 Conversely, if the client's property has considerable value, the potential effectiveness of the lien will be enhanced. 2. Scope of the Lien The scope of the lien has expanded to cover almost all pa- 464, 660 P.2d at 929 (citing Ross v. Scannell, 97 Wash. 2d 598, -, 647 P.2d 1004, 1008 (1982)). See also Attorney Grievance Comm'n. v. McIntire, 286 Md. 871, 405 A.2d 273 (1978) (dictum) (attorney's lien is passive and cannot be enforced either at law or in equity); Note, General or Retaining Lien, supra note 5, at 727 (attorney's lien is a passive lien). 36. For the proposition that the lien will not be enforced by court order, see generally Lazenby v. Codman, 116 F.2d 607 (2d Cir. 1940) (retaining lien cannot actively be enforced); The Flush, Bulk Oil Transp., Inc. v. Robins Dry Dock & Repair Co., 277 F. 25 (2d Cir. 1921), cert. denied, 257 U.S. 657 (1922); In re Wilson, 12 F. 235 (S.D.N.Y. 1882); Modern Woodman of Am. v. Cummins, 216 Mo. App. 404, 268 S.W. 383, (1924) (lien will not be enforced by court order); In re Heinshemer, 214 N.Y. 361, 108 N.E. 636 (1915). For treatises on the subject, see 2 E. THORNTON, ATTORNEYS AT LAW 575 (1914); Annot. 111 A.L.R. 481, 487 (1937). 37. See SPEISER, supra note 5, at 16: See the leading case, often cited as The Flush, 277 F. at 25, cert. denied, 257 U.S. 657 (1922). The court denied the client the right to inspect papers held by the attorney, stating that "[i]f the client is given the right to inspect the papers or to compel their production while the lien continues, it certainly impairs the value of the lien, as it diminishes the embarrassment caused by the attorney's retention of them, and might make them valueless to the attorney, and the lien nugatory." Id. at 31. See also Wentworth, supra note 5, at 192 (the only leverage is the possible inconvenience caused to the client); SPEISER, supra note 5, at 379 (noting that "[tihe only advantage an attorney gains from his retaining lien is the possibility of forcing his client to settle because of embarrassment, inconvenience, or worry."). 39. It has been suggested that a retaining lien has nothing more than nuisance value. See Note, Attorney's Liens, supra note 5, at 540. For case law citing the same proposition, see United States v. Smith, 670 F.2d 915 (10th Cir. 1982). The Smith court, acknowledging that the attorney's retaining lien inconvenienced the clients, allowed the lien. Said the court: "If we were to hold the lien must give way because it hampers the clients' defense of their suits, we would emasculate the retaining lien as it applies to general balances due." Id. at 920. See also In re San Juan Gold, Inc., 96 F.2d 60 (2d Cir. 1938) (attorney's lien cannot be disregarded merely because the pressure it is supposed to exert becomes effective); Brauer v. Hotel Assoc. 40 N.J. 415, 192 A.2d 831 (1963) (effectiveness of the lien is proportionate to the inconvenience of the client denied access to the property).

9 1985] ATTORNEY'S LIENS pers of the client 40 and has been asserted against different kinds of property. 41 The lien is effective to secure all of the debts owed the attorney by the client, regardless of whether the debts are charged against the particular papers being retained. 42 In effect, the lien is on the "general balance" due for all legal services.' An attorney asserting such a lien can retain all of the client's papers in order to recover fees and costs owed for any work performed." While the lien has expanded with time to cover more property and debts owed, the retaining lien has also been restricted by courts in several ways. For instance, it is available only to the attorney of record. 4 5 Attorneys can retain only those papers that 40. See Note, Attorney's Retaining Lien, supra note 5, at 301 for a discussion of specific materials covered. See also Brauer, 40 N.J. at _. 192 A.2d at 833. See generally 7 Am. JUR. 2D 273, 276 (1963). 41. See, e.g., McPherson v. Cox, 96 U.S. 404 (1877) (a bond); Habegger v. Kipp, 96 Minn. 456, 105 N.W. 489 (1905) (a mortgage); Stewart v. Flowers, 44 Miss. 513 (1871) (a letter and a deed); Leviten v. Sandbank, 291 N.Y. 352, 52 N.E.2d 898 (1943) (stock certificates); Jackson v. Erkins, 131 A.D. 801, 116 N.Y.S. 385 (1909) (leases); In re Stenton, 53 Misc. 515, 105 N.Y.S. 295 (Sup. Ct. 1907) (bankbooks); Mathot v. Triebel, 98 A.D. 328, 90 N.Y.S. 903 (1904) (a contract); In re Sweeney, 86 A.D. 547, 83 N.Y.S. 680 (1903) (an insurance policy); Hazeltine v. Keenan, 54 W. Va. 600, 46 S.E. 609 (1904) (a promissory note); Kusterer v. City of Beaver Dam, 56 Wisc. 471, 14 N.W. 617 (1883) (a retainer contract). 42. See, e.g., Borup, 159 F. Supp. at 810 (lien exists if any fee owed and continues during litigation over the amount owing); Morfeld v. Andrews, - Wyo. -, 579 P.2d 426 (1978) (attorney entitled to retaining lien to recover the reasonable value of services); Goldman v. Rafel Estates, Inc. 269 A.D. 647, 58 N.Y.S.2d 168 (1945); Bowling Green Say. Bank v. Todd, 52 N.Y. 489 (1873) (lien can be used to recover for all services). For New York cases following the proposition that a retaining lien attaches to all property, see Lovell's Ebb Tide Room v. Aetna Casualty & Sur. Co., 56 Misc. 2d 170, 288 N.Y.S. 2d 425 (Sup. Ct. 1968); Entertainment & Amusements of Ohio v. Barnes, 49 Misc. 2d 316, 267 N.Y.S. 2d 359 (Sup. Ct. 1966). See also JoNEs, supra note 5, at See People ex rel. Goldberg v. Gordon, 199 Colo. 296, 607 P.2d 995 (1980). In Goldberg, there was no basis for a lien on the client's stock certificates in the attorney's possession because, at the time of assertion, the attorney was not owed a "general balance of compensation." Id. at 300, 607 P.2d at 997. The court adopted the conclusion of the Colorado Grievance Committee that where the client had repeatedly asked for her files and stock certificates and had advised the attorney that he would be paid when the estate was completed, the attorney "either had no right to a lien or lost such a right by abusing the privilege afforded him [under the statute]." Id. 44. See SPEISER, supra note 5, at 16:6 (retaining lien applies to a general balance for all professional services). See also Weed, 56 Vt. at 580, where the court discussed the historical background of the allowance for fees and costs. 45. For judicial application of this legal premise, see, e.g., Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983) (attorney does not have lien on settlement recovered by another attorney and is entitled only to a reasonable fee or compensation); In re Applica-

10 BRIDGEPORT LAW REVIEW [Vol. 6:77 come into their possession within their professional capacity.", Thus, for example, no lien rights come into existence if the lawyer is acting as a trustee," ' or if he or she holds the papers for a special purpose." e Similarly, the retaining lien does not extend to records and papers which, by the rules of a court, have to be filed in court, 9 or to documents received in connection with transactions that do not concern strictly legal services Loss of the Lien With a retaining lien, the attorney may retain possession until the client pays, or, in some instances, until security is given by the client. 51 An attorney loses the lien when the property in tion of Kitzen, 25 N.Y.S.2d 738 (Sup. Ct. 1940) (lien to attorney of record only). 46. Weed, 56 Vt. at 578 (attorney has lien on client's papers which he obtained in his capacity as advocate without the necessity of any special contract regarding them). 47. See Akers v. Akers, 233 Minn. 133, 46 N.W.2d 87 (1951) (no lien as trustee). 48. See Gitlitz, 499 F. Supp. at 1015 (no retaining lien on funds deposited with an attorney in escrow for payments to others absent specific authorization in the escrow agreement to pay the attorney out of the escrow fund); Entertainment & Amusements, 49 Misc. 2d at , 267 N.Y.S.2d at (no retaining lien on escrow funds). See also City of New York v. Avenue U Serv. Center, 5 Misc. 2d 795, 141 N.Y.S.2d 584 (Sup. Ct. 1955) (attorney has no lien on money deposited with him in escrow for the payment of creditors). 49. Severdia v. Alaimo, 41 Cal. App. 3d 881, 116 Cal. Rptr. 405 (1974) (filing pursuant to court order had effect of invalidating the attorney's lien); In re Bergstrom, 131 A.D. 791, 116 N.Y.S. 245 (App. Div. 1909) (attorney lost a lien on papers by filing them with the court pursuant to a court order). 50. See Nancy Lee Mines v. Harrison, 93 Idaho 652, 655, 471 P.2d 39, 42 (1970). In Nancy Lee Mines, an attorney acted both in a managerial capacity and as legal counsel to a corporation. The attorney did not acquire a retaining lien on the records and books of the corporation to secure payment for his managerial services. Id. at , 471 P.2d at Therefore, the attorney's lien was found to be invalid where it was used to recover compensation for managerial services unrelated to the legal services also performed by him. Id. at 655, 471 P.2d at 42. See also Jovan v. Starr, 87 Ill. App. 2d 350, 231 N.E.2d 637 (1967) (attorney holding earnest money deposit as escrow had no lien on the money since no attorney-client relationship existed); Anataya v. Majett, 12 Misc. 585, 177 N.Y.S.2d 242 (Sup. Ct. 1958) (no lien for non-legal services); Note, Attorney's Liens, supra note 5, at But see Brauer v. Hotel Assoc., 40 N.J. at -, 192 A.2d at 834 (allowing the attorney's lien on corporate records which had come into the possession of an attorney in his capacity as an attorney and not as an agent of the corporation). 51. For the proposition that the courts may order the client to pay reasonable attorney's fees or post a bond as security before requiring relinquishment by the attorney, see generally Iowa v. Union Asphalt & Road Oils, Inc., 409 F.2d 1239 (8th Cir. 1969) (attorney withdrawal conditioned upon payment of fees); National Equip. Rental v. Mercury Typesetting Co., 323 F.2d 784 (2d Cir. 1963) (where the fee dispute concerned matters unrelated to the pending litigation, the court could not condition substitution on posting of security).

11 1985] ATTORNEY'S LIENS possession is lost. 2 If an attorney voluntarily gives up possession of the papers, the lien is terminated. 53 Another way that the lien A number of jurisdictions have approved court orders to relinquish the property upon condition that the client pay the asserted claim or furnish security. See Upgrade Corp. v. Michigan Carton Co., 87 Ill. App. 3d 662, 410 N.E.2d 159 (1980); Morse, 65 Nev. at , 195 P.2d at 199; Steiner v. Stein, 141 N.J. 478, 58 A.2d 102 (1948). See also The Flush, 227 F.2d at 28. The court found that where substitution of the attorney is based on misconduct, the attorney must give up his papers without payment of fees and bring a separate action. Where there is no charge of misconduct, the general rule is that the request for substitution will not be granted unless there is some provision "that the fees and expenses of the displaced attorney shall be paid or secured to him, or his lien in some way preserved." Id. For a case which outlines several factors to be considered in determining what security should be required for release of files when the attorney/client relationship has terminated, see Miller, 615 P.2d at 617. These factors are: (a) Whether there was just cause for discharging the attorney; (b) Whether the attorney initiated the withdrawal; (c) The client's ability to provide security or to pay the fee; (d) The importance of the files to the client; (e) The ethical obligations of an attorney; (f) Whether the fee is disputed, and, if so, the reasonable amount of any lien to be charged; (g) Whether the amount due the attorney is contingent or fixed; (h) Whether part of the sum due is for costs advanced by the attorney which may justify reimbursement before ordering release of the files. Id. at 620 (footnote omitted). 52. See Weed, 56 Vt. at 578, 48 Am. Rep. at 821. "Having the possession, he has the right to retain them against his client... until the general balance due him for his legal services is paid. The client cannot discharge him and withdraw such papers or money from his hands without first paying the general balance due him for legal services... " Id. See also Hauptmann v. Fawcett, 243 A.D. 613, 276 N.Y.S. 523, modified, 243 A.D. 616, 277 N.Y.S. 631 (1935) (where the papers were essential to defense of a criminal charge, attorney was required to give up possession and lost his lien). 53. See Reynolds v. Warner, 128 Neb. 304, 258 N.W. 462 (1935). In Reynolds, the possessory lien was lost when the attorney filed papers in his possession in court in order to procure a judgment. The court said that the attorney "has his choice of action at the time, either to retain the papers and his lien or to give up the papers and surrender his lien." Id. at -, 258 N.W. at 464. See also American Fidelity Fire Ins. Co. v. Paste-Ups Unlimited, 368 F. Supp. 219 (1974) (in a garnishment proceeding, failure to adhere strictly to statutory procedures will result in the loss of the garnishment lien); Mahomet v. Hartford Ins. Co., 3 Wash. App. 560, 477 P.2d 191 (1970) (surrender by the attorney of the client's fire insurance policies had the effect of invalidating the attorney's statutory retaining lien in the absence of an agreement or an assignment); Hazeltine, 5 W. Va. at 605, 46 S.E. at (voluntary surrender of notes released any possible lien); Gillespie v. Hynes 168 Neb. 49, 95 N.W.2d 457 (1959). The court in Gillespie, finding that the claimant had no right to a mechanic's lien in view of the failure to comply with statutory requirements, cited Reynolds, 128 Neb. at 304, 258 N.W. at 462 for the proposition that an equity court was without jurisdiction to enter personal judgment against the defendant where no lien existed. Id. at 89-90, 95 N.W.2d at 458. But see American Nat'l Bank v. Funk, 68 Okl. 169, 172 P (1918) (deposit of check with a bank clerk was not such

12 BRIDGEPORT LAW REVIEW [Vol. 6:77 can be lost is when an attorney, bringing an action to collect fees, files with the court the papers upon which the lien is asserted. 5 " However, bringing an action by itself does not ordinarily release the lien. Forfeiture of the lien results as well from any agreement, express or implied, between the attorney and client. 5 5 It is also forfeited by withdrawal from a suit by an attorney without just cause 56 or reasonable notice, 51 that is, by voluntary withdrawal without justification. However, if an attorney is wrongfully discharged by the client, the attorney has a retaining a release of possession as to destroy attorney's lien). 54. Jenkins, - Colo. at -, 676 P.2d at The Jenkins court limited application of the general rule that a lawyer's retaining lien should be protected until fees are paid to proceedings other than a suit by the attorney to recover fees. The court held that an attorney forfeits his rights to exclusive possession in a suit for fees in view of policies favoring discovery and the availability of judgment creditor's remedies to the attorney. Id. In Ross, 6 Ill. App. 2d 304, 127 N.E.2d 519, a former client who was being sued for fees obtained a subpeona duces tecum for her papers. The attorney refused to comply, arguing that an attorney should not be compelled to produce records on which he has a retaining lien until he has been paid. The court ruled for the client, reasoning that it was the duty of the attorney to make complete disclosure. For a discussion of loss of an attorney's lien, see Note, Attorney's Retaining Lien, supra note 5, at See Gonzalez v. Sword Line, Inc., 201 F.2d 416 (2d Cir. 1953) (where the attorney and the client had specifically provided by agreement that the attorney would look to client's insurers for compensation, there was no lien). See also 2 F. R. MECHEM, AGENCY 2273 (2d ed. 1914) (if an attorney takes independent security for payment of fees, a court may find acquiescence to an implied agreement). 56. For a discussion of the issue of just cause in several jurisdictions, see, e.g., Borup, 150 F. Supp. at 810 (dictum) (mere fact that client refused to accept settlement does not constitute just cause for withdrawal); Burston v. Pinkis, 25 N.Y.S.2d 12 (Sup. Ct. 1941) (attorneys who withdrew without justifiable cause were not entitled to recovery on contract or quantum meruit or oral promise of client); Howard v. McCarson, 215 Ala. 251, 110 So. 296 (1926) (when an attorney accepts a retainer, he enters a contract to proceed to conclusion, and he may not abandon his relation without justifiable cause or the client's consent (citing 6 CoRP. Jus. 186 (1924))); Genrow v. Flynn, 166 Mich. 564, 131 N.W (1911) (where the client charged the attorney with falsehood, gross fraud and negligence by telegram rather than by mail, the attorney had proper grounds for abandonment). 57. Tenney v. Berger, 93 N.Y. 524 (1883) (dictum) (an attorney who abandons the service of his client without justifiable cause and reasonable notice cannot recover for the services rendered). See also Demov, Morris, Levin & Shein v. Glantz, 53 N.Y.2d 553, 428 N.E.2d 387, 444 N.Y.S.2d 55 (1981) (a client may discharge an attorney at any time, with or without cause (citing Tenney, 93 N.Y. at 529)). The New York courts have held that even a mere threat of withdrawal works a forfeiture of the possessory lien. See Kaplan v. Kaplan, 65 N.Y.S.2d 677, 678 (Sup. Ct. 1946). While an attorney who withdraws from a case for justifiable reason or is wrongfully discharged may have the right to a retaining lien, courts have recognized exceptions to the general right. See Hernandez v. Nierenberg, 15 Misc.2d 818, 179 N.Y.S.2d 322 (Sup. Ct. 1958) (where the client was unable to pay or post bond).

13 1985] ATTORNEY'S LIENS lien on papers and files in the case." 4. Assignment and Set-off of Lien As a general rule, the common law retaining lien cannot be assigned. 59 Courts have expanded the general rule and have refused assignment in light of ethical considerations, as, for example, where an assignment would violate the attorney's duty to maintain the confidences of the client inviolate. 60 Courts have also restricted assignment on the basis that the attorney has a fiduciary relationship with the client. 6 " Unlike other creditors, the attorney is viewed as more than a mere bailee since the client's property comes into the hands of the attorney in personal trust. 62 Concerning other creditors, the attorney's lien may be protected against the set-off rights of other parties Courts' Power to Enforce Retaining Lien The courts' inherent power to enforce retaining liens arises out of its ability to control and to protect its officers. " ' Recognizing the dual nature of this power the Second Circuit has held 58. See Midvale, 21 Utah 2d at 182, 442 P.2d at 940. In Midvale, the court stated in a dictum that "[i]f the attorney is wrongfully discharged by the client, he need not surrender his papers in the case until he is paid his fee for services rendered." Id. But see National Sales, 136 Ariz. at -, 667 P.2d at 741, discussed at supra notes 2-3. The concurrence disagreed with the conclusion reached in Midvale. Citing Midvale as a case where the court discussed a misuse of the lien, it stated that a lien should not be used to force a client to settle a dispute obligation in order to obtain documents urgently needed. National Sales at -, 667 P.2d at 741. See also Miller, 615 P.2d at 621 (Matthews, J., dissenting). The Miller dissent recognized that a client has an absolute right to discharge his attorney with or without cause without undergoing financial penalties. The Miller dissent relied on Fracasse v. Brent, 6 Cal. 3d 784, 494 P.2d 9 (1972) and Heinzman v. Fine, 216 Va. 958, 234 S.E.2d 282 (1977). 59. Cf. SPEISER, supra note 5, at 16:12-16:13. But see Davis v. National Sur. Co., 139 Cal. 223, 72 P (1903) (where assignment of a retaining lien was allowed). 60. See THORNTON, supra note 5, at See, e.g., Sullivan v. Mayor of New York, 68 N.Y. 544 (1893). 62. Leask v. Hoagland, 64 Misc. 156, 188 N.Y.S (1909), rev'd on other grounds, 136 A.D. 658, 121 N.Y.S. 197 (1910). 63. For cases in New York and New Jersey holding that a trustee in bankruptcy takes title subject to all the liens on the property, including the attorney's retaining lien for services rendered prior to the bankruptcy, see In re San Juan Gold, Inc., 96 F.2d at 60; In re Allied Owners' Corp., 72 F.2d 255 (2d Cir. 1934); In re Eurich's Ft. Hamilton Brewery, 158 F. 664 (E.D.N.Y. 1908); In re Wilson, 12 F. 235 (S.D.N.Y. 1882). 64. Leviten v. Sandbank, 291 N.Y. 352, 52 N.E.2d 898 (1943) (retaining liens were created by the courts for the protection of its officers).

14 BRIDGEPORT LAW REVIEW [Vol. 6:77 that "the power which the courts have summarily to enforce performance by the attorney of his duties toward his client enables the court to protect the rights of the attorney as against the client." 6 The power to enforce is not only inherent, it is discretionary." For example, the courts can lift the lien, as did the New York Court of Appeals when the client rendered security in lieu of the papers in a fee dispute situation. The New York court held that insisting on a lien in such circumstances was not in accordance with the standard of conduct a court can require. In sum, courts can enforce and restrain the attorney's right to a lien. C. The Special or Charging Lien 1. Nature of the Lien The charging lien is a claim by the attorney on the judgment, decree or award for fees and costs in a particular case. 68 An attorney who has not been paid can "lien" on the judgment recovered in order to recover the monies owed by the client in a particular action. Where there is no recovery in the litigation, 65. Everett, 225 F. at 935. The Everett court held that a client had a right to change the attorney at any stage of the proceeding without assigning any reason. However, in ordering the substitution, the court might impose such terms as might be justified under the circumstances to protect the rights of the attorney if he were free from fault. Id. 66. See In re Long, 287 N.Y. 449, 40 N.E.2d 247 (1942) (when a court exercises its inherent power in the absence of statutory rules, procedure rests largely in the discretion of the court). 67. Id. See In re Grand Jury Proceedings, 727 F.2d 941, (10th Cir. 1984). The court found that only the client had an ownership right in the attorney's file, and that the attorney's interest was only that of a retaining lien. "[H]is interest at best is a pecuniary one, not an interest of ownership, nor privacy." Id. at 945. Consequently, the court held that it may order the files surrendered to the client or another attorney on the request of the client, subject only to the attorney's right to be protected in receiving compensation from the client. Id. at See In re Heinsheimer v. Schulte, 214 N.Y. 361, 108 N.E. 636 (1915). Judge Cardozo wrote: It was not a lien for a general balance of account. It was a lien for the value of the services rendered in that very action....if the attorney got possession of the fund, he had a general lien. If he did not get possession his lien was for the services that brought the fund into existence. Id. at 362, 108 N.E. at 637. See generally Note, General or Retaining Lien, supra note 5, at 821.

15 1985] ATTORNEY'S LIENS the lien does not attach. 9 Created as an equitable lien, the purpose was to protect the rights of an attorney without possession of the client's property. 70 The lien is sometimes viewed not as a lien at all, but as "merely a claim to the equitable interference of the court to have the judgment... held as security for the debt." '7 ' The reason for viewing it as a "non-lien" is that it lacks the essential possessory element characteristic of most liens. 72 Because it does not depend on possession, the charging lien is unlike most other liens known to the law. 7s It resembles and is most closely allied 69. Dempsey v. Pink, 101 F.2d 72 (2d Cir. 1939), cert. denied, 307 U.S. 639 (1939) (where there is no recovery, proof of an agreement to pay the attorney out of a particular fund is needed for the creation of a lien). 70. Robinson v. Rogers, 237 N.Y. 467, 143 N.E. 647 (1924) (courts may not destroy charging lien on proceeds of judgment or settlement, although they can compel a discharged attorney to deliver client's papers or property before payment of his fee if bond or other security is received). One court construed the purpose of the lien as one of protecting attorneys against "the knavery" of their clients. See Goodrich v. McDonald, 112 N.Y. 157, 163, 19 N.E. 649, 651 (1889). See also In re Albrecht, 132 Misc. 713, 230 N.Y.S. 543 (Sup. Ct. 1928), afl'd, 225 A.D. 423, 233 N.Y.S. 383 (1929), afl'd, 253 N.Y. 537, 171 N.E. 772 (1930) (since there was no verdict, award or judgment to which lien could attach, attorney was not entitled to lien); Ashman v. Shecter, 196 Md. 168, 76 A.2d 139 (1950). The Ashman court noted that the charging lien was not patterned after doctrines formulated in other cases but was based on the broad principles of justice that an attorney should be paid out of the judgment obtained as a result of his skills and labor. Id. at 174, 76 A.2d at 142. "It was a means invented by the courts to protect attorneys from being cheated by their clients by preventing clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained." Id. See also Stone, Mechanic's Liens, 30 DRAKE L. REV. 39, 42 ( ); United States v Acres of Land, 167 F. Supp. 512 (D. Md. 1958). Relying on the principle announced in Ashman, the Maryland district court found that attorneys for owners of land condemned by the United States were not entitled to a lien on the fund paid into court by the United States. Id. at 516. The attorneys had an adequate remedy at law to recover compensation since the client was solvent and able to respond to any judgment against him. Id. Cf. United States v. Jacobs, 187 F. Supp. 630 (D. Md. 1960) (the court allowed the attorney's lien on a fund held for client on equitable principles). 71. United States v. Hudson, 39 F. Supp. 797, 801 (D. Md. 1941). See Note, Attorney's Liens, supra note 5, at 542. See also Randall v. Van Wagenen, 115 N.Y. 527, 22 N.E. 361 (1889) ("By the common law, an attorney, by commencing a suit, acquires no lien on the cause of action. The lien only arises after the judgment, and is a right to have the judgment held for the debt...." Id. at 531, 22 N.E. at 362 (emphasis added)). 72. In this respect, the charging lien resembles the mechanic's lien, in that one who has produced the product, while not retaining possession, is entitled to the fruit of his or her labor. For a more complete discussion of the mechanic's lien, see infra note For a discussion of this distinguishing feature, see In re Heinsheimer, 214 N.Y. at 361, 108 N.E. at 636. Justice Cardozo wrote: "This lien was not dependent on possession. The very reason for its existence was to save the attorney's rights where he had

16 BRIDGEPORT LAW REVIEW [Vol. 6:77 with a mechanic's lien. A mechanic's lien does not depend on possession and, like the charging lien, is based on the concept of reaping the fruit of one's labor. 74 Despite these views, this right of an attorney to reap the benefits of his or her labor has been continuously recognized and labeled by the courts as a charging lien. 7 s 2. Scope of the lien A charging lien permits an attorney with standing to intervene in an action in the lawyer's own name. 7 6 Thus, no separate action need be initiated such as a separate suit for fees." A been unable to get possession." Id. at , 108 N.E. at 637. See also SPEISER, supra note 5, at 16:41; Wentworth, supra note 5, at 195; Note, Attorney's Liens, supra note 5, at The theory and purpose of a mechanic's lien is to protect persons who have supplied labor and material for the construction, improvement, or repair of a building or other structure by giving the lien holders security independent of their contractual remedies against the owner of the property. See S. PHILLIPS, THE LAW OF MECHANIC'S LIENS 9 (3d ed. 1893). Like the attorney's charging lien, the focus is on services rendered rather than on possession. The mechanic's lien is designed to prevent the recipient of services from retaining the benefit of such services without paying, as is true also of the attorney's charging lien. Both types of liens can be viewed as essentially remedial interests rather than ownership interests in property. Mechanic's Hens can be distinguished from the attorney's charging lien in at least two regards. First, the mechanic's lien is a statutory lien and is not recognized in equity, as the charging lien is, without statutory authorization. Id. at 15. Second, the holder of a mechanic's lien has a right to force a judicial sale of the property, but an attorney cannot do the same with a court judgment. Id. However, the enforcement of mechanic's liens can be subject to equitable principles. See Stone, supra note 70, at 42. For example, the Iowa Supreme Court has mandated that the mechanic's lien statute be interpreted to effect its equitable purposes. In Gollehon, Schemmer & Assoc. v. Fairway-Betterdorf Assoc., 268 N.W.2d 200 (Iowa 1978), the court held that the attorney's lien statute is to be "liberally construed with a view to promoting its objects and to assisting the parties in obtaining justice." Id. at For a discussion of the nature and historical background of the charging lien, see supra notes & For a recent case supporting the proposition that an attorney is entitled to reap the benefits of his or her labor, see In re Ernst, Inc., 4 Bankr. 317, (Bankr. S.D.N.Y. 1980) (attorney retained on a contingent fee has a lien in the amount of his fee against any fund generated due to his efforts). See generally Thompson, Attorney's Fees and Liens, 85 CoM. L.J. 136, (1980). 76. Standidge v. Chicago Ry. Co., 254 Ill. 524, 98 N.E. 963 (1912) (attorney need not bring separate suit to recover fees). 77. See Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977). In reviewing the Colorado statute on attorney's liens, COLo. REV. STAT (1973), the Gee court allowed the statutory charging lien without an independent civil action on the basis that restricting enforcement to an independent action would be a waste of judicial time and contrary to legislative intent. Id. at 552, 550 P.2d at 836. See also Frazee, 104 Idaho at P.2d at 929. In dicta, the Frazee court, citing Skelton v. Spencer, 102 Idaho 69,

17 19851 ATTORNEY'S LIENS charging lien allows the attorney to be paid from the money judgment recovered 7 8 and to be paid before other creditors. 79 No charging lien arises if the attorney's work does not produce an 625 P.2d 1072, cert. denied, 454 U.S. 894 (1981), held that an attorney was not required to file an independent action but could file his claim in connection with the divorce proceedings. But see Hawkins v. Powers, 635 P.2d 915 (1981) (dispute over attorney's fees arose after the completion of the primary litigation). 78. See In re Shirley Duke Assoc., 611 F.2d 15 (2d Cir. 1979). An attorney has a lien upon the fund created by his litigation efforts and nothing more. As a result, the Duke court held that the attorney representing a creditor in a bankruptcy proceeding was limited, by way of lien, to the fund allocated to the payment of his client's claim. He could not ask the court to enforce a lien upon a separate fund. Id. at 18. See also Regan v. Marco M. Frisone, Inc., 54 A.D.2d 1125, 388 N.Y.S.2d 798 (1976). The general rule is that the lien attaches only to a money judgment. In Connecticut, like most states, there can be no lien on specific real or personal property. See Hagearty, 4 Conn. Supp. at 505 (attorney who prosecutes an action involving the title to real estate does not, in the absence of a special agreement or statute, acquire a right of lien upon the disputed real estate. See also Wessinger v. Sturkie, 77 F.2d 751 (4th Cir. 1935) (attorney is not entitled to liens on property involved in litigation for fees). But see Ashman, 168 Md. 168, 76 A.2d 139 (1950). The almost universal belief is that the common law grants no lien on property to an attorney hired to secure title to real property. In Ashman, the attorney did not even acquire the property as the result of a suit, so that no charging lien on the property was allowed. However, in Ashman, a statute allowing a charging lien on property superseded the efficacy of the common law lien. See, e.g., Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887) (recognizing that the Colorado statute on attorney's liens was more comprehensive than the common law lien, the court held that the language of the statute allowing an attorney a lien on "any judgment," regardless of subject matter, showed legislative intent to allow a lien upon real property); Lovett v. Moore, 98 Ga. 158, 26 S.E. 498 (1895) (attorney given statutory lien on land for his services in successfully defending an adverse claim to the land). See also In re King, 168 N.Y. 53, 60 N.E (1901) (New York statute allowed an attorney to have a charging lien on personal property recovered by him for his client). But see Ekelman v. Marano, 251 N.Y. 173, 167 N.E. 211 (1901) (an attorney has no lien on property for successfully defending title thereto). An agreement between the attorney and client will also effectuate a lien on property. See, e.g., Mackall v. Willoughby, 167 U.S. 681 (1897) (because there was an agreement between the attorney and the client, the attorney was given a lien on the property, title to which he successfully defended against a claim by third persons). See also Webster v. Sweat, 65 F.2d 109 (5th Cir. 1933) (the federal court, in applying Mississippi Law, held that where land is taken in satisfaction of a judgment, the lien does attach to the land). 79. United States v. Thornhill, 703 F.2d 1288 (9th Cir. 1983). A client may by agreement grant a lien to the attorney which would take precedence over other creditors. Id. at 1300 (citing, inter alia, Isrin v. Superior Court, 403 P.2d 728, 45 Cal. Rptr. 320 (1965)). In Thornhill, the equitable liens for attorney's fees could not prevail against the government's income tax lien since there was no written fee agreement. Thornhill, 703 F.2d at See also United States v. Jacobs, 187 F. Supp. 630 (D. Md. 1960) (lien of discharged attorney was held superior to both the state and federal claims for a lien against the same sum). For an older case cited frequently for this proposition, see Weed, 56 Vt. at 581 (attorney's lien prevailed over an attachment by trustees because trustees knew that the attorneys were prosecuting the action against them and thus the law presumed that the trustees had knowledge and notice).

18 BRIDGEPORT LAW REVIEW [Vol. 6:77 identifiable fund. 80 As is true with the retaining lien, the lawyer can obtain compensation for both fees and costs. 8 Courts differ as to whether the basis of recovery is on the contract or in quantum meruit. 82 There are clear distinctions between a retaining lien and a charging lien. Unlike the passive retaining lien, the charging lien depends on an affirmative act by the attorney. 8 " The charging lien also pertains only to the particular judgment in question and not to a general balance due. A lawyer cannot use a charging lien to recover for past services nor to recover if a second attorney litigates to judgment. 8 Failure to make these distinctions 80. See, e.g., Cox v. Scott, 10 A.D.2d 32, 197 N.Y.S.2d 60 (1960) (no charging lien for attorney's search for funds left by client's wife); Desmond v. Socha, 38 A.D.2d 22, 327 N.Y.S.2d 178 (1971), afl'd, 31 N.Y.2d 687, 289 N.E.2d 181, 337 N.Y.S.2d 261 (1972) (no charging lien where attorney only defended an interest and his services neither created a fund nor proceeds out of which he sought payment); Spinello v. Spinello, 70 Misc. 2d 521, 334 N.Y.S.2d 70, 76 (Sup. Ct. 1972) (no charging lien since no fund created); Ekelman, 251 N.Y. at 173, 167 N.E. at 211 (no charging lien where attorney only defended a title or interest already held by the client). 81. High Point Casket Co. v. Wheeler, 182 N.C. 459, 109 S.E. 378 (1918). The attorneys were awarded one-third of the amount of judgment and costs, and were entitled to the value of their contract less the quantum meruit of the defendant. 82. See Potts v. Mitchell, 410 F. Supp (D. N.C. 1976) (attorneys were not entitled to recover the full value of their contract and were allowed only quantum meruit since they had not prosecuted the case to judgment); State v. Radinsky, 182 Colo. 250, 512 P.2d 627 (1973) (recovery on quantum meruit). Cf. High Point, 182 N.C. at 459, 109 S.E. at 378 (recovery allowed on contract). 83. See Frazee, 10 Idaho at 464, 660 P.2d at 931. "In sum, an attorney's charging lien is not passive as is the possessory or retaining lien. A charging lien is only brought about by some affirmative act of the party asserting the lien in reducing it to a judgment or order of the court." Id. The court found that no fund existed since the divorced husband had already paid the client-wife. See also Hubbard v. Ellithorpe, 135 Iowa 259, 112 N.W. 796 (1907) (in a suit for services for obtaining a divorce for the wife, the court allowed the attorney a lien on the funds paid to the court by husband to satisfy judgment against him); Campanello v. Mason, 231 Okla. 159, 571 P.2d 449 (1977) (where the client received title in a divorce settlement, the attorney was entitled to charging lien because no new rights or "fruits" were created); Ross v. Scannell, 97 Wash. 2d 598, 647 P.2d 1004 (1982) (the special or charging lien has the capacity to be adjudicated and enforced). But see Sooner Fed. Say. & Loan Ass'n. v. Mobley, 645 P.2d 1000 (Okla. 1982). No statutory attorney's lien was placed upon the homestead awarded to the husband in the divorce decree. Therefore, the divorce judgments requiring the husband to pay attorney's fees to his former wife's attorney were money judgments not enforceable against the husband's homestead). Id. at See, e.g., Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983) (interpreting the Arkansas statute on attorney's liens). The court found that the discharged attorney was entitled only to a reasonable fee as compensation.

19 1985] ATTORNEY'S LIENS has led to conflict and confusion in many cases Contract Considerations Even though a special or charging lien is allowed on the theory that the service or skill of the attorney produced the judgment, assertion of the lien depends on the existence of a valid contract for fees, either express or implied. 6 Without a valid contract, no lien can be asserted. 8 7 The attorney and client can also agree by contract that there will be a lien on the cause of action, as well as on the judgment. 88 In such a case, a settlement before judgment will not destroy the lien. Absent a contractual agreement, however, a settlement before judgment will render the lien invalid. 89 A contract providing an attorney with a fixed percentage of the recovery does not alone give rise to such a lien. 90 Where the amount of compensation is agreed upon, the attorney has a lien in that amount. 91 Where the attorney has 85. In the leading Nevada case of Morse, 65 Nev. at 275, 195 P.2d at 199, the court found that the attorney had two liens: a statutory charging lien and a common law retaining lien. For other courts which distinguished the two kinds of liens, see Adams, 597 F.2d at 570, discussed at infra note 203 and accompanying text; Weed, 56 Vt. at See, e.g., Johnson v. Blue Cross, 329 N.W.2d 49 (Minn. 1983). The court found no implied-in-fact or implied in-law contract between the attorney and Blue Cross and, consequently, did not allow a charging lien on the reimbursement to the health carrier for a worker's compensation claim successfully settled by the attorney. Id. at 52. But see Kleager v. Schaneman, 212 Neb. 333, 322 N.W.2d 659 (1982). In Kleager, a divorced wife seeking an accounting against her ex-husband executed a fee contract with her attorney in which she agreed to pay the attorney one-third of all money recovered. Even though the wife filed a written dismissal of the accounting action after payment to her by the exhusband, the court allowed the attorney to assert the lien based upon the contract. Id. 87. See Hightower v. Detroit Edison Co., 262 Mich. 1, 247 N.W. 97 (1933) (because the compensation claimed by an attorney was under an illegal retainer agreement, the court refused the attorney a lien in his own right on the judgment). 88. BROWN, THE LAW OF PERSONAL PROPERTY 116 (1936). 89. See Randall v. Van Wagenen, 115 N.Y. 527, 22 N.E. 361 (1889). Even where there may have been collusion between the parties to settle before judgment, the attorney had no lien on the judgment and was required to bring a separate suit. Id. at 530, 22 N.E. at Button v. Anderson, 112 Vt. 531, 536, 28 A.2d 404, 407 (1942). The test of whether an equitable lien on a recovered fund arises is whether the party contracting for the services sufficiently indicates an intention to make the fund described in the contract security for the debt. It does not arise solely on the basis of a contract for a contingent fee. Id. 91. See Blazek v. North American Life & Casualty Co., 265 Minn. 236, 121 N.W.2d 339 (1963) (a contract in which the client agreed to pay one-third of all proceeds collected from an insurance company established the attorney's right, not only to one-third of the judgment recovery but also to all future payments under the insurance policy).

20 BRIDGEPORT LAW REVIEW [Vol. 6:77 been discharged or where no specific agreement exists, the attorney is entitled to reasonable compensation and a lien to that extent. 92 A. Overview III. LIENS IN CONNECTICUT The law in Connecticut regarding attorney's liens is unclear because the case law is sparse and there are no statutory provisions on point. An early decision acknowledged the charging lien but questioned the existence of the retaining lien. 93 A later holding suggests that the only lien existing in Connecticut is a retaining lien." However, the CBA recently has advanced the opinion that no retaining lien exists in the state. 5 The existence of the retaining lien is therefore questionable. It seems clear 92. See Potts v. Mitchell, 410 F. Supp (W.D.N.C. 1976), holding that, where the attorney's firm was discharged, the only recovery was for the reasonable value of the services and not for the full value of the contingent fee contract. Id. at The Potts court distinguished its result from the holding of High Point, 182 N.C. at 459, 109 S.E. at 378. High Point held that where the attorney had fully performed, the contract constituted an equitable assignment of the judgment which vested when the case was settled or prosecuted to judgment. Id. The general rule is that there can be no vesting if the attorney has not fully performed. Potts, 410 F. Supp. at See also Cole v. Myers, 128 Conn. 223, 21 A.2d 396 (1941), in which the court affirmed the client's right to discharge the attorney with or without cause. The Cole court held that the client's right to discharge "would be a barren power if the contract fee... [was] nevertheless to be paid." Id. at 230, 21 A.2d at 399. As a corollary, the Cole court held that the attorney was not entitled to receive "the agreed fee he probably would have earned had he been allowed to continue in his employment." Id. Thus the attorney was entitled only to a reasonable compensation. See generally Nutt v. Knut, 200 U.S. 12 (1906) (contract giving lien on the amount allowed was void under a federal statute, but the provision agreeing to pay the compensation fixed was not in violation of the statute and could stand alone); Myers v. Miller, 134 Neb. 824, 279 N.W. 778 (1939) (the court can protect, through equity, the claim of the attorney and can secure payment of just charges earned from the fruits of his or her own labor). 93. See Andrews, 12 Conn. at 446, where the court stated: We do not say, nor do we believe, that attorneys in any case have a lien upon the judgments and papers of their clients similar to that which manufacturers and others have upon goods and moneys in their hands. We only say, that they have, in certain cases of which this is one, such a claim upon them as courts of law and equity will protect and enforce, until their lawful fees and disbursement are paid, subject to the equitable rights of others. Id. (emphasis added). 94. See Hagearty, 4 Conn. Supp. at See generally CBA Comm. on Professional Ethics and Grievances, Formal Op. 31 (1978) [hereinafter cited as CBA Formal Op. 31].

21 19851 ATTORNEY'S LIENS from judicial interpretation that a charging lien in Connecticut may be asserted as a common law lien.' However, there seems to be confusion as to the rights of attorneys, clients and thirdparties regarding the charging lien,"' as well as uncertainty on the part of attorneys as to the proper procedures for successfully asserting a charging lien on a judgment. 8 In addition, concerns about malpractice have clouded the issue of when and how an attorney can assert either of these common law liens.' B. Charging Liens in Connecticut 1. Overview In a majority of states, the charging lien is statutory. 100 The general rule is that it has priority over most other liens. 101 The states which do not have a statutory lien 02 may or may not recognize an equitable attorney's lien.' 03 Connecticut does not have 96. The case law suggests that the existence of a charging lien has been recognized consistently by the Supreme Court of this state. See, e.g., DeWandelaer v. Sawdey, 78 Conn. 654, 63 A. 446 (1906); Benjamin v. Benjamin, 17 Conn. 110 (1845); Francis v. Rand, 7 Conn. 221 (1828). See also Walker v. Hartford Realization Co., 74 F.2d 56 (2d Cir. 1934) (attorney had a charging lien because there was an identifiable fund and because there was an agreement between the parties that attorney should be repaid from the assets when recaptured); Warren Tool Co. v. Stephenson, 11 Mich. App. 274, 161 N.W.2d 133 (1968) (citing Walker, 74 F.2d at 56, the Warren court reaffirmed the principal that an agreement to pay out of an identifiable fund when it comes into existence gives rise to an equitable lien). 97. For courts which noted this confusion, see Morse, 65 Nev. at 275, 195 P.2d at 199, discussed at supra note 9, and Adams, 597 F.2d at 570, discussed at infra note For discussion of the proper procedure, see infra text accompanying notes See infra text accompanying notes and notes Where the lien is statutory, the legislative definition supersedes the common law definition. See Robinson, 237 N.Y. at 467, 143 N.E. at 647; Akers, 233 Minn. at 133, 46 N.W.2d at See Pittman v. United States, 116 F. Supp. 576 (Ct. Cl. 1953) (the agreement between the attorney and the client gave the attorney an equitable interest in the proceeds of the judgment, but a federal statute prohibiting assignment of a claim against the government to a third party rendered the agreement null and void). See also Hairston, The Ranking of Attorney's Liens Against Other Liens in the United States, 7 J. LEGAL PROF. 193 (1982) (discussing priority of attorney's liens over other creditors) For a discussion of Second Circuit states, see supra note For example, California does not recognize the common law attorney's charging lien. See Desser, Rau & Hoffman v. Goggin, 240 F.2d 84 (9th Cir. 1957). However, in California the lien may be created by express contract. See Cetenko v. United Cal. Bank, 114 Cal. App. 3d 449, 170 Cal. Rptr. 706 (Ct. App. 1981), affd, 30 Cal. 3d 528, 638 P.2d 1299, 179 Cal. Rptr. 902 (1982) (attorney's lien based on contract for fees prevailed over

22 BRIDGEPORT LAW REVIEW [Vol. 6:77 a statutory lien but it does recognize an equitable lien Nonstatutory attorney's liens are governed by the Uniform Commercial Code.1 05 However, priorities among federal and state-created lien of subsequent judgment creditor). See also In re Pacific Far East, Inc. v. Official Creditor Comm., 654 F.2d 664 (9th Cir. 1981) (even though the attorney was discharged he had a valid enforceable lien on fund which took effect at the date it was created and attached upon the fund's production). Id. at But see In re Diplomat Elec., Inc. v. Westinghouse Elec. Supply Co., 499 F.2d 342 (5th Cir. 1974) (since there are no statutory provisions for attorney's liens, they are governed by the common law which, in Florida, allows a charging lien for services rendered in a defamation suit). Most jurisdictions recognize the right of an attorney to an equitable charging lien. See United States v. Jacobs, 187 F. Supp. 630, 635 (D. Md. 1960). The Court in Jacobs held that, under principles of equity, a court was authorized to allow a reasonable fee to the attorney out of the fund created by the attorney's efforts and in the custody and control of the court. Important to the decision in Jacobs were the facts that the client had no other assets and the attorney had no possessory lien since he had been discharged. Id. at 633. See generally Hanna Paint Mfg. Co. v. Rodey, Dickason, Sloan, Akin, & Robb, 298 F.2d 371 (10th Cir. 1962) (court, in applying New Mexico law, recognized equitable liens); Del Conte Masonry Co. v. Lewis, 16 Cal. App. 3d 678, 94 Cal. Rptr. 439 (1971) (under California law, equitable lien takes effect at the date of creation and attaches to the specific asset upon the fund's production). But see Ruzyc v. Brown, 327 Pa. 61, 192 A. 876 (1937). The Ruzyc court did not recognize an equitable lien for attorneys and stated, "whatever be the law in other jurisdictions, it is well settled in our state that an attorney has no lien upon a judgment recovered by him for a client in a common law action.... Indeed the statute attempting to establish such a lien was declared unconstitutional." Id. at 65, 192 A. at 877 (citing Laplacca v. Philadelphia Rapid Transit Co., 265 Pa. 304, 108 A. 612 (1919)). Relying on the reasoning in Ruzyc the court in Syme v. Bankers Nat'l Life Ins. Co., 400 Pa. 552, 161 A.2d 29 (1960) held that the attorneys who successfully sued on a life insurance policy were not entitled to a charging lien upon the proceeds paid to the client See, e.g., Andrews, 12 Conn. at 444 (attorney has a lien on the judgment where the attorney of the judgment creditor gives notice to both the creditor and the judgment debtor). The Andrews court limited its holding to the facts of the case, stating that the attorney does not have a lien upon the judgments and papers similar to a mechanic's lien. Id. at 446. Instead, the attorney is regarded as the "assignee of a chose in action." Id. at 447. By limiting the holding in this way, the court managed to maintain consistency with the previous holdings of Rumrill, 5 Day at 163 (the attorney has a retaining lien but no lien on the judgment which can affect the rights of a stranger) and Gager v. Watson, 11 Conn. 168 (1836) (attorney's lien on judgment is subject to rights of third parties). See Cooke, 51 Conn. at 105 (attorney has a lien for the sum recovered). See also DeWandelaer, 78 Conn. at 658, 63 A. at 447. The DeWandelaer court held that the attorney had an equitable Hen on the judgment for his services and expenses, since he had taken the case with the understanding that "he must look to the judgment... for compensation." Id Hairston, supra note 101, at 196 n.16. Non-statutory liens should be perfected in accordance with Uniform Commercial Code (1978). Hairston, supra note 101, at 196 n.16. Connecticut has adopted Article 9 of the U.C.C. in CONN. GEN. STAT. 42a to 42a (1983). However, it is important to note that not all states have adopted Article 9 in its entirety. For the proposition that non-statutory liens are not governed by the U.C.C., see

23 1985] ATTORNEY'S LIENS liens are governed generally by the common law principle that "first in time is first in right."' 06 Board of County Comm'rs. v. Berkeley Village, 40 Colo. App. 431, 580 P.2d 1251 (1978) (in Colorado, statutory liens are not governed by the U.C.C.). See Gitlitz, 499 F. Supp. at The priority of federal tax liens and state-created liens is governed by the common law rule of "first in time is first in right." Id. at 1013 (citing United States v. City of New Britain, 347 U.S. 81 (1953) and MDC Leasing Corp. v. New York Ins. Underwriting.Ass'n., 450 F. Supp. 179 (S.D.N.Y. 1978), aff'd mem., 603 F.2d 213 (2d. Cir. 1979)). The Gitlitz court noted that the federal tax lien takes priority unless the competing lien falls within a statutory provision of the Internal Revenue Code or is a state-created lien perfected prior to the tax lien. In Gitlitz, since the attorney had neither a proper retaining lien nor a charging lien, the federal tax lien took priority. Id. at However, the federal courts have given effect to state laws which recognize such liens. See Webster, 65 F.2d at 110 (while federal courts do not recognize any common law lien in favor of attorneys, they do give effect to the laws of the states in which the liens are held). See also Hanna Paint, 298 F.2d at 371 (circuit court applied New Mexico law to recognize an equitable lien); Chancey v. Bauer, 97 F.2d 293 (5th Cir. 1938) (federal courts will recognize and enforce attorney's liens authorized by state law). Note that in one leading case, United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979), the Supreme Court decided that federal priority rights should be governed by federal law. Id. at 727. Absent a congressional directive, the relative priority of private liens and consensual liens arising from government lending programs is to be determined under nondiscriminatory state law. Id. at However, the Court circumscribed the precedential value of Kimbell by tailoring its opinion to the facts presented, and effectively limited its holding to a lien arising under a federal lending program. Id. at 726. See also United States v. Pisani, 646 F.2d 83 (3d Cir. 1981) (federal law governs nationwide programs such as medicare). See generally Priority of.federal Liens, 11 RUT.-CAM. 554 (1980) In most states, the priority of the attorney's lien is based on the doctrine of qui prior est tempore potior est jure, that is, "Priority in time gives preference in law." BLACK's LAW DICTIONARY 1125 (5th ed. 1979). For federal cases holding that priorities among federal and state created liens are governed by the "first in time" rule, see generally United States v. Pioneer Am. Ins. Co., 374 U.S. 84, 87 (1963); United States v. City of New Britain, 347 U.S. 81, 84 (1954); United States v. Clinton, 260 F. Supp. 84, 89 (S.D.N.Y. 1966). Some states, however, do not apply the first in time approach and simply give the attorney's lien priority over all other liens. See, e.g., Roberts v. Hanover Ins. Co., 338 So. 2d 158 (La. Ct. App. 1976) (priority over all other liens). See also COLO. REV. STAT (1973) (same); GA. CODE (1973) (priority over all liens except tax liens); LA. REv. STAT. ANN (West 1975) (priority over all liens). In the states without a statutory lien, such as Connecticut, the charging lien attaches at the time it is perfected by the attorney and is not afforded the liberal treatment associated with statutory liens. See generally Hairston, supra note 101, at 195. Hairston argued that the superiority of the statutory attorney's lien over other liens should be extended to cover all situations. The basis of this argument is that since the attorney is the one responsible for creating the fund which is sought by other creditors of the client, equity demands that the attorney be given the first opportunity in the division of the judgment. The argument concluded with the warning that "[i]f the attorney is unable to recover his fee out of the judgment, he will probably go uncompensated since a client, with so much debt that creditors are even attaching possible judgment is probably 'judgment proof'." Id. at 201.

24 BRIDGEPORT LAW REVIEW [Vol. 6:77 Since Connecticut recognizes the equitable common law charging lien, general principles of law govern its application. For example, a charging lien cannot attach until the judgment is entered. 107 Also, certain basic premises regarding notice must be given consideration before asserting a charging lien. 08 Litigation in many jurisdictions has focused on statutory notice requirements.1 09 Courts have given a liberal construction to these requirements."1 0 While jurisdictions are split on when and to whom notice must be given,"' ordinarily as between an attorney and client, notice of the lien is not essential to the validity of the lien on a judgment recovered by the attorney. 2 In The federal courts do not recognize a common law lien in favor of the attorney, nor is there an applicable federal statute. See generally Berger, The Attorney's Lien in Federal Courts: A Protection that Is Long Overdue, 39 A.B.A. J. 131 (1953). In the early 1950's Senator McCarran and Congressman Walter introduced bills in the Eighty-Second Congress to provide for a federal attorney's lien statute. The Senate Bill, S. 2546, passed the Senate, and the House Bill, H.R. 6405, was approved by the House Judiciary Committee but was never ratified See Hooper v. Welch, 43 Vt. 169 (1870) (default judgment is not a judgment in the sense that no charging lien can attach) See generally SPEISER, supra note 5, at 16:19-16:20 (discussing notice requirement). See Radinsky, 182 Colo. at 260, 512 P.2d at 628. The Radinsky court found that where there was a contingent agreement between attorney and client, notice of a lien which stated that the client would pay $32,000 was misleading. The court stated that "an attorney's lien which misstates facts and is utilized to overreach and force payment of more than is owed cannot be tolerated." Id See, e.g., Home Ins. Co. v. Jones, 253 Ark. 218, 485 S.W.2d 190 (1972) (discussing time at which the attorney's lien should properly attach), followed in Lide v. Cline, 537 F. Supp. 643, 648 (D. Ark. 1982) (attorney's lien attaches at the time suit is filed and becomes valid and binds judgment obtained by attorney's efforts). The time of attachment can vary under different state statutes. See, e.g., VA. CODE (1978) (the lien attaches at the time the attorney commences legal services); Wyo. STAT (1981) (lien attaches when the attorney gives the opposing party and the court notice of it); UTAH CODE ANN (1977) (lien attaches at the commencement of the legal proceeding) See, e.g., Home Ins., 253 Ark. at 218, 485 S.W.2d at 190 (the attorney's lien statute is remedial and thus should be liberally construed). See also Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967) (statutes which are enacted to avoid necessity of filing suit should be liberally construed) Some jurisdictions hold that no 'notice is required to preserve the lien on recovered property. See, e.g., Walsh v. Hoskins, 53 Mont. 198, 162 P. 960 (1917) (no notice necessary in the absence of a statutory requirement); In re Tierney, 88 Misc. 347, 151 N.Y.S. 972 (Sup. Ct. 1914) (judgment recovered constituted notice of the lien where attorney had asserted a lien only for costs); Taylor v. Badrux, 58 S.W. 919 (1899) (holding that pendency of the action to subject land to debt payment constituted notice) See Clark v. O'Donnell, 68 Colo. 279, 187 P. 534 (1920) (attorney's lien on personal property recovered for client was valid even without statutory notice); Coleman v. Austin, 99 Ga. 629, 27 S.E. 763 (1896) (while the statute provided for notice, it did not

25 1985] ATTORNEY'S LIENS some jurisdictions there is a requirement of notice on the theory that the charging lien must be made to stand in a position of priority against a settlement in good faith. 11 Also, as to a third party judgment debtor, a lien cannot be asserted against the debtor if he or she has not received notice and has already settled with the judgment creditor client. 14 If the judgment debtor has actual notice of the lien and, in some states, if he or she has notice of the facts such as to put a prudent person on notice, the attorney is sufficiently protected. 1 ' However, once the losing party has received notice of the lien, any payments made to the judgment creditor will be paid at the debtor's peril."' 2. Set-Off Conflict exists as to whether an attorney's charging lien is superior to the right of an adverse party to assert a set-off" 17 require such filing to render the lien valid). As against creditors of a client, some courts have held that filing of notice is not required. See Brown v. Bigley, 3 Tenn. 618 (1878) (no requirement that a decree declaring an attorney's lien on land be filed in order to give notice to client's creditors). But see Teller v. Hill, 18 Colo. App. 509, 72 P. 811 (1903) (creditor's lien held superior to that of attorney where creditor had no notice of the attorney's lien at the time the creditor filed a transcript of his judgment) See, e.g., Andrews, 12 Conn. at See also Northrup v. Hayward, 102 Minn. at 312, 113 N.W. at 705 (where the judgment debtor had actual notice of the attorney's claim and settled with the client in order to defraud the attorney, the payment was void to the extent of the attorney's claim) See Wentworth, supra note 5, at See Northrup, 102 Minn. at 309, 113 N.W. at 703. The Northrup court stated that proper construction of the notice requirements of the statute was that notice in fact perfects the lien. "[A]ctual notice, whether written or verbal, answers every purpose of the statute." Id. The court noted that the trend in other jurisdictions was also toward actual notice. Id See Andrews, 12 Conn. at The attorney claimed a judgment lien and gave notice of the lien to the judgment creditor and the debtor-client. The debtor-client subsequently disregarded the attorney's claim and paid the creditor out of the judgment. The attorney was allowed to execute the lien to cover his fees and costs. Id. In Andrews, the debtor-client was required to pay the attorney out of the judgment because he "paid [his creditors] with full notice of the attorney's prior claim, and in defiance of it. In this his conduct was collusive and fraudulent; and the payment was made in his own wrong." Id. at 448. The Andrews court, in holding that the basis of the attorney's claim was that he took as the assignee of a chose in action and as such was entitled to all the rights and duties subject to that action, relied on the New York case of Nicholl v. Nicholl, 16 Wend. 446, 448 (1809), and the English decisions of Welsh, 1 Dougl. at 238, 99 Eng. Rep. at 155 and Read v. Dapper, 6 Tenn. Rep. (Eng.) 361 (1785). Andrews, 12 Conn. at See generally SPEISER, supra note 5, at 16:21-23 (priority and set-off). The common law distinguished between pre-existing and after-acquired judgments when considering the priority between set-offs and charging liens. See generally Lewis v. Railroad

26 BRIDGEPORT LAW REVIEW [Vol. 6:77 against the client. " 8 Ordinarily, the lien is superior to a right of set-off which arises subsequent to the judgment," 9 and inferior to pre-existing judgments. 20 The Connecticut courts, in ruling that an attorney has no superior equity, have not followed the trend of other jurisdictions.' 2 ' For example, in Benjamin v. Ben- Retirement Bd., 256 Ala. 930, 54 So. 2d 777 (1951), cert. denied, 343 U.S. 919 (1952); U.S.F. & G. v. Levy, 77 F.2d 972 (5th Cir. 1935). See Lide, 537 F. Supp. at 648, discussed at supra note 109 (where set-off permitted, the set-off has priority over the attorney's lien) See Rumrill, 5 Day at 163. The decision in Rumrill held that an attorney would not have a superior right, acknowledging that this holding was an exception to the general rule. Id. at 164. For cases that followed Rumrill with approval, see Ripley v. Bull, 19 Conn. 53 (1848) (if the creditor had notice of an assignment of a judgment by the debtor-client to the attorney, creditor cannot have his judgment set-off against one which debtor has against him); Benjamin v. Benjamin, 17 Conn. 110 (1845) (an assignment of a judgment by the judgment creditor to his attorney for payment of the attorney's fees operates to prevent set-off); Gager, 11 Conn. at 168 (the attorney had no lien on judgment as against creditor of debtor-client); Francis v. Rand, 7 Conn. 221 (1828) (attorney's lien cannot be interposed to prevent set-off between client and judgment debtor). See also SPEISER, supra note 5, at 16:21-23 (priority and set-off) See, e.g., Beecher v. Vogt Mfg. Co., 227 N.Y. 468, 125 N.E. 881 (1920) (attorney's lien superior to right of third party); Warfield v. Campbell, 38 Ala. 527 (1863) (setoff acquired subsequent to judgment does not defeat previously granted attorney's lien). The Warfield court stated that "[tihe attorney is regarded as an assignee as of the date of judgment and thus... [h]e has an older equity than that acquired by a set-off of later acquisition; and the maxim 'qui prior est in tempore potior est in jure' applies in his favor." Id. at 533. See also Cattle Owners Corp. v. Arkin, 267 F. Supp. 658, (S.D. Iowa 1967) (where attorney renders service with free knowledge of the rights and claims of existing creditors, he has no superior lien and his lien is subject to and inferior to the prior lien); La Fleur v. Schiff, 239 Minn. 567, 58 N.W.2d 320 (1953) (statutory charging lien is superior to rights of judgment creditor of the client). But see In re Diplomat, 499 F.2d at (in the absence of statutory authority, the common law rule that a preexisting judgment is superior to a charging lien on a later acquired judgment defeated the attorney's lien) See Tiffany v. Stewart, 60 Iowa 207, 14 N.W. 241 (1882). Even though the attorneys had a lien on and an assignment of the judgment, costs could be set-off and deducted from the judgment recovered. The Tiffany court stated that "[w]e think it is clear that while the attorneys in this case may not be personally liable for costs because they did not take the assignment until after verdict, yet they stand in the shoes of their client, and must take the judgment with all the burdens attached to it by the course of litigation." Id. at 210, 14 N.W. at 243. See also In re Will of Lamm, 252 Iowa 1045, 109 N.W.2d 708 (1961). Following the decision in Tiffany, the Iowa Supreme Court found that the executor of an estate had a superior lien to the charging lien of the attorney on his client's interest in the estate. In re Will of Lamm at 1052, 109 N.W.2d at For example, the law in New York seems clearly to indicate that the lien prevails over the claims of creditors of the client. See In re Peters, 271 A.D. 518, 67 N.Y.S.2d 305 (1946), modified on other grounds, 296 N.Y. 974, 73 N.E.2d 560 (1947). But in New York, the lien does not supersede a prior charge against the same fund. See, e.g., In re Brooklyn Bridge, 31 A.D.2d 895, 296 N.Y.S.2d 279 (1969) (conflict with lien of City

27 19851 ATTORNEY'S LIENS jamin, 2 2 the court held that an attorney's charging lien for his fees was subject to the debtor's right of set-off. However, the Benjamin court also stated that the judgment creditor's assignment of the judgment was effectual to prevent a set-off against such judgment. " ' 3. Loss of the Lien The charging lien can be lost in many ways, 2 4 either through the actions of the attorney or those of the client. The attorney waives the lien if the attorney fails to enforce it and the debtor has discharged the liability under the judgment 25 or the attorney has delivered the judgment proceeds to the client Waiver also occurs if the attorney agrees that the proceeds of the judgment will be remitted or collected, and that he or she will be paid at stated intervals If an attorney agrees to hold of New York for unpaid rent); Baldwin Kitchen Cabin Corp. v. Artz, 27 Misc. 2d 265, 209 N.Y.S.2d 39 (Sup. Ct. 1960), modified on other grounds, 15 A.D.2d 560, 222 N.Y.S.2d 950 (1961) (prior mechanic's lien) Conn. 110 (1845). The Benjamin court acquiesced to the precedent set in Rumrill, 5 Day at 163, while admitting that it would have adhered to the trend in other courts on set-off and the attorney's lien rights if there were no controlling precedent. Benjamin, 17 Conn. at 114. It concluded by stating that if the present rule in Connecticut is to be changed it should be done so by the legislature. Id. No subsequent decisions indicate that the rule in Connecticut has changed to give the attorney's lien precedence over other creditors Id. at 113. In another leading case, Ripley v. Bull, 19 Conn. 53 (1848), the court again affirmed the exception to the general principle regarding assignment. Id. at 57. Note, however, that the Ripley court underscored that its decision was limited to the assignment of a debt on judgments by the creditors to the attorney as security for his services and disbursements in a suit brought upon the debt. It held that a client's assignment of a debt to his attorney made with notice to the debtor is effective to prevent setoff against it of a separate and distinct debt due to that debtor from the assignor. Id See generally SPEISER, supra note 5, at 16:24 (loss of lien) See, e.g., Donaldson, 260 F.2d at 333 (settlement extinguished the claim and any possessory lien attached to the claim). Fillmore, 10 Colo. at 228, 15 P. at 343 (if an attorney neglects to proceed to enforce his lien until a third person has in good faith purchased the property liened on, he should be held to have waived his lien). See also SPEISER, supra note 5, at 16:24-29 (loss of lien) Ingalls Iron Works Co. v. Fehlhaber Corp., 337 F. Supp. 1085, 1092 (S.D.N.Y. 1972) (citing Goodrich, 112 N.Y. at 157, 19 N.E. at 649). The purpose of the rule on waiver, according to the Ingalls court, was "to avoid any misleading of third parties as to the status of of the proceeds." Ingalls, 337 F. Supp. at See, e.g., Gross v. Holzworth, 15 Mont. 179, 440 P.2d 765 (1968) (attorney waived charging lien for expenses where he failed to deduct expenses from the settlement of the case handled on contingent fee basis).

28 BRIDGEPORT LAW REVIEW [Vol. 6:77 property as a trustee and to use it to pay fees, 12 or if he or she agrees to take other security, 129 the lien will be deemed to be waived. While the death of an attorney may not extinguish the lien, 30 disbarment may have that effect. 13 ' Generally, abandonment of a case without just cause precludes the attorney from any charging lien he or she might have had on the ultimate judgment. 132 However, the lien is not lost if the attorney withdraws for just cause See, e.g., Teller v. Hill, 18 Colo. App. 509, 72 P. 811 (1903) (the attorney held to have waived his right to a lien where he agreed to take the property in his own name as trustee) See, e.g., McChessey v. Sims, 267 F.2d 215 (2d Cir. 1959) (attorney had waived right to a charging lien by accepting a bond and a mortgage for legal compensation in advance of the client's bankruptcy); Stearns v. Wollenburg, 51 Or. 88, 92 P (1907) (right to claim lien waived by taking or agreeing to take other security). But see Clark, 68 Colo. at 279, 187 P. at 534 (lien on personal property not waived upon delivery to trustee because the attorney notified the trustee of his claim at the time of making delivery) See, e.g., Sargent v. McLeod, 209 N.Y. 360 (1913) (where attorney died before he prosecuted to a judgment, his estate was allowed the lien under statute but not under contract) See In re Woodworth, 85 F.2d 50 (2d Cir. 1936) (withdrawal from a suit by reason of disbarment constitutes a voluntary abandonment of the contract without just cause). However, courts in various state jurisdictions have found, to the contrary, that disbarment does not extinguish the lien. See, Harris Trust & Sav. Bank v. Chicago College of Osteopathic Medicine, 116 Ill. App. 3d 906, 452 N.E.2d 701 (1983). The Harris court stated that a disbarred attorney was entitled to recover fees under quantum meruit for the reasonable value of his services prior to disbarment. However, the Harris court disallowed the application of the stated rule since the attorney had accepted payment and had released any claims upon discharge. See also Tiringer v. Grafenecker, 38 Misc. 2d 29, 239 N.Y.S.2d 567 (Sup. Ct. 1962) (in New York, a disbarred attorney is entitled to a lien for disbursements and legal services prior to disbarment, unless evidence shows disbarment was for conduct connected with the case); Stein v. Shaw, 6 N.J. 525, 79 A.2d 310 (1951) (attorney, disbarred before settlement, entitled to reasonable value of services for suit commenced under contingent fee contract) Suffolk Roadways, Inc. v. Minuse, 56 Misc. 2d 6, 287 N.Y.S.2d 965 (Sup. Ct. 1968). In Suffolk, the attorneys of record were the only ones familiar with the facts and laws regarding summary judgment made against their clients. As a consequence, the court held that they owed the clients a duty to represent them at least until a final decision of the summary judgment motion, even if the attorneys would have had good cause to withdraw and have a lien fixed under normal circumstances. The general rule, as stated by the court, is: "[W]here... an attorney withdraws without good and sufficient cause, his lien is automatically forfeited." Id. at 7, 287 N.Y.S.2d at 967 (citation omitted). See also Marrero v. Christiano, 575 F. Supp. 837 (S.D.N.Y. 1983) (withdrawal because client refused settlement offer did not constitute good cause and, consequently, the lien on any eventual recovery was forfeited); People v. Keeffe, 50 N.Y.2d 149, 428 N.Y.S.2d 446, 405 N.E.2d 1012 (1980) (charging lien can be lost by voluntary withdrawal or by discharge for misconduct) In re Dunn, 205 N.Y. 398, 98 N.E. 914 (1910). The Dunn court is often cited

29 1985] ATTORNEY'S LIENS Clients can also cause the lien to fail. For example, a client can defeat the attorney's right to a charging lien by settling the cause of action before judgment through dismissal or compromise."' If there has been a judgment recovery, or if the lien has already attached by compliance with the statute, then settlement, compromise or dismissal of the suit without the lawyer's consent will neither defeat nor prejudice the lien.' " Furthermore, the lien can be lost if a third party has purchased from the client the judgment recovery in good faith and for valuable consideration. " ' Finally, if the client discharges the attorney without cause, the lien is not extinguished. 3 7 However, if an attorney is discharged for cause, no lien can be claimed. " 8 4. Enforcement In the absence of statutory provisions, only a court of equity has jurisdiction to enforce an attorney's charging lien. 39 As a result, an attorney cannot and need not seek an independent action at law to enforce a charging lien in Connecticut. On applicafor the proposition that the attorney may withdraw from an action at any time for a good cause and upon reasonable notice. In such a circumstance the lien would not be forfeited. In Dunn, the retaining lien was lost because the court found that refusing to proceed with the prosecution of the suit was without just cause. Id See DeWandelaer, 78 Conn. at 654 (attorney was not entitled to have the case restored to the docket merely to enable him to prosecute the suit to judgment and thereby secure his fees) For general discussion of the issue of compromise or settlement by the client, see SPESER, supra note 5, at See also Midland Valley Ry. Co. v. Johnson, 140 Ark. 174, 215 S.W. 665 (1919) (lien on valid express or implied contract attaches when the suit is brought and thus is not affected by settlement or dismissal) See Fillmore, 10 Colo. at 228, 15 P. at See Peresipka v. Elgin Joliet and Eastern Ry. Co., 231 F.2d 268 (7th Cir. 1956) (record did not disclose that attorney had been discharged for good cause so as to deprive him of lien) Gary v. Cohen, 34 Misc. 2d 971, 231 N.Y.S.2d 394 (Sup. Ct. 1962). The Gary court held that a disbarred attorney had to turn over client papers to substituted counsel. In so holding, the court noted that "[i]f an attorney is justifiably discharged, he is not entitled to recover either under the contract or upon the basis of quantum meruit." Id. at 975, 231 N.Y.S.2d at 398. See also First Nat'l Bank of Cincinnati v. Pepper, 547 F.2d 708 (2d Cir. 1976). The attorney's conduct subsequent to his discharge as counsel did not constitute "cause" and thus did not forfeit claim to a reasonable fee. Id. at 716. The Pepper court reasoned that "[s]ubsequent behavior can hardly be read backwards to cancel a valid claim for prior services." Id Cf. Barnes v. Alexander, 232 U.S. 117 (1914) (with statutory provisions, the lien may be enforced by an independent action at law).

30 BRIDGEPORT LAW REVIEW [Vol. 6:77 tion to the court, the lien will be enforced in the original action in which the services were rendered." 0 The appropriate procedure in Connecticut for attachment generally is for the attorney to file a motion for a prejudgment remedy. 141 There must be an affidavit stating the facts and a copy of the summons and complaint must be attached to the motion."1 2 Connecticut law requires that a bond be posted with any summons and complaint. However, an attorney cannot post a bond pro se. Therefore, the attorney seeking a charging lien cannot swear on his own recognizance and, to avoid this defect, must hire an outside attorney to initiate the action. Thus, if an attorney wants to enforce a charging lien, he or she must be prepared to incur whatever expenses may flow from the necessity of hiring outside counsel. C. Retaining Liens in Connecticut 1. Overview Connecticut has no statutory retaining lien. While retaining liens at common law have been recognized in the American legal system since early times," 3 there is at least some debate as to 140. In the absence of Connecticut law on point, general treatises and the law in other jurisdictions can be looked to for guidance. See Standidge, 254 Ill. at , 98 N.E. at for the proposition that it was not unconstitutional to bring the suit for a lien in the same action based on the rationale that such an action did not destroy the uniformity of practice required in the same class of courts. In effect, the Standidge court held that the action may be brought in the original action, but not that it must so be brought. Id. See also High Point, 182 N.C. at 459, 109 S.E. at 378. See generally RE- STATEMENT (SECOND) AGENCY 464 (1958). According to the Restatement, since the right is one of priority only on the sums realized from the execution of the judgment, it does not include a right to maintain an action against a debtor or an assignee of the judgment. Id., comment (e) See CONN. GEN. STAT b (1983) (prejudgment remedies); Id., (1983) (attachments) See CONN. GEN. STAT b to d (1983) (procedure for prejudgment remedies) See, e.g., Prichard v. Fulmer, 22 N.M. 134, 135, 159 P. 39, 40 (1916). In the absence of a statute, the courts must resort to the common law and to the practice prevailing in courts of equity. The retaining lien was enforced by the English courts as early as Id. See ABA Comm. on Professional Ethics and Grievances, Formal Op. 209 (1940). "In most jurisdictions an attorney is given a lien upon papers of his client properly in his possession as security for the payment of his fee." Id. at 497. See also Robinson, 237 N.Y. at 467, 143 N.E. at 647 (a discharged attorney has a general lien for entire balance due on all client's papers, securities or monies in his possession, as distinguished from a charging lien which is only for services rendered in a particular action); Attor-

31 1985] ATTORNEY'S LIENS whether Connecticut recognizes the right of an attorney to assert such a lien in light of CBA opinions to the contrary and the limited case law on the subject. " In one of the few cases on the subject, the superior court in Hagearty v. Burns 145 recognized a retaining lien, characterizing it as "a mere possessive right" and refusing to define the lien further."" However, Connecticut is not alone in questioning the validity of retaining liens CBA Opinions on Retaining Liens While the court in Hagearty recognized a retaining lien, the CBA advised in a recent opinion that no such retaining lien exists in Connecticut when it stated that "[ain attorney cannot properly assert a retaining lien by which he would hold a file until payment of his fee. Although [disciplinary rules permit] a lawyer to acquire a lien granted by law to secure his fee or expenses, apparently no such lien exists in Connecticut.' ' 4 1 The ney's Retaining Lien, supra note 5, at 298. To support the proposition that no jurisdiction has rejected the retaining lien, the author cites Keane v. McFee, 75 Idaho 541, 275 P.2d 960 (1954). The author, however, has misinterpreted the court's meaning, for what the Keane court said was that... "no authority [on the premise that an attorney has a retaining lien on anything of value, in addition to the statutory charging lien] has been cited to the contrary." Id. at 548, 275 P.2d at 968. What the Keane court meant was that the court briefs did not bring forth any authority to support the proposition that a retaining lien does not exist at common law For reference to CBA opinions, see text accompanying notes For reference to case law in Connecticut, see infra notes 149, 154 & Conn. Supp. 505, aff'd sub. nom. Hagearty v. Ryan, 123 Conn. 372 (1937) (the attorney claimed a lien on receiver's certificates which were in the attorney's possession) In the absence of statutory law, the court stated: "[U]ntil the legislature actually defines an attorney's lien I cannot extend the meaning of the Rules at common law." Id. at See Academy, 51 Cal. App. 3d at 999, 124 Cal. Rptr. at 668 (consensually created retaining lien held invalid). "If a retaining lien is recognized at common law (without being contracted for), it is a fortiori valid when agreed to; on the other hand, since we here hold this consensual lien invalid, it follows that it does not exist at common law in California." Id. at 1001 n.1, 124 Cal. Rptr. at 6671 n.1. But see National Sales, 136 Ariz. at -, 667 P.2d at 741 (Feldman, J., concurring), discussed at supra note 2. The concurrence stated that the Academy court had not reached the unequivocal holding that the lien did not exist in California. Further, the concurrence noted that the lien has been universally recognized, citing Annot., 33 A.L.R.2d 148 (1949); and that "[tihe dissent has not cited, nor have I found, a case explicitly refusing to recognize the existence of the lien in all circumstances." National Sales, 136 Ariz. at -, 667 P.2d at 741 (Feldman, J., concurring) CBA Formal Op. 31.

32 BRIDGEPORT LAW REVIEW [Vol. 6:77 CBA opinion relied upon Connecticut case law. " 9 Instead of recognizing the retaining lien as a valid procedure by which to force payment through embarrassment, inconvenience and worry, " the CBA viewed the proper procedure for securing payment of attorney's fees as the responsibility of the lawyer subsequently hired. " ' The new attorney has two choices. He or she may provide the initial counsel with an agreement, signed by both attorneys, whereby the second attorney both acknowledges the first attorney's claim and establishes the method of division of the ultimate fee. Alternatively, the new attorney can send a letter to the initial attorney stating that upon conclusion of the client's matter, he or she will hold in the client's funds account the money required under the initial arrangement until disposition has been determined by an agreement, a voluntary fee dispute arbitration proceeding, or a court. 52 The CBA concluded that custom should dictate what is proper procedure in Connecticut. 53 There are four problems with the CBA opinion. First, the CBA offered no statistical or measurable basis for its conclusion that fee protection by the second attorney is the custom in this state. Second, it does not indicate what is the proper procedure in a situation where a second attorney is not hired. A third problem with the analysis by the CBA is that it seems to ignore important Connecticut case law which would support a conclusion that a retaining lien does exist A fourth and final problem 149. For Connecticut decisions relied on by the CBA, see Cole v. Myers, 128 Conn. 229, 21 A.2d 403 (1941). In Cole, the court recognized that a client has the right to discharge his attorney and to substitute another at any time with or without cause and in contravention of any contract. Id. See also Cooke, 51 Conn. at 105 (an attorney could assert a special or charging lien against a judgment fund he had produced where the client agreed he had such a lien); Andrews, 12 Conn. at 446. (attorney had an equitable claim, generally denominated a lien, upon the judgment) For a discussion of the force of the attorney's retaining lien, see supra notes and accompanying text See CBA Formal Op. 31, supra note 95. The key to solving the problem is the ethical obligation of the new lawyer to represent both the client's interest zealously and to protect the fee entitlement of the first attorney. Id Id. Note that when a fee is in dispute the three alternatives spelled out by the CBA are ordinarily available to the attorney or the client as additional options to either a retaining or charging lien. Id Id See Rumrill, 5 Day at 163. The Rumrill decision is a clear example of how courts often confuse the retaining and charging lien, a confusion also noted by the court

33 1985] ATTORNEY'S LIENS with the CBA opinion is that the Committee ignored some important language in a previous opinion.' 5 5 In its earlier opinion, the CBA declared that a retaining lien was not ethically objectionable where retaining a client's papers only causes a delay and does not jeopardize the client's interests. 56 Thus, the CBA ignored the clear implication of the earlier opinion that the common law retaining lien does exist in this state, together with the common law charging lien. 157 In spite of case law and its own opinion to the contrary, the CBA was forced to conclude that no retaining lien exists. Recognizing that there was a conflict between the client's right to be represented by an attorney of choice l 58 and the lawyer's right to payment, 59 the CBA was unable to resolve the conflict reasonain Weed, 56 Vt. at 578. "Failure to distinguish the two has led to considerable apparent confusion, not to say conflict, in the decisions on this subject." Id. In Rumrill, the court stated that the "attorney has a lien for his services and expenses, on the papers and securities of the client, in his hands, of which he may avail himself in an action of trover; and that he is answerable to him in account, only for the balance of the avails when collected." Id. at 165. Thus, the Rumrill court seemed to indicate that the attorney can hold the client's papers in order to be paid out of the judgment for the expenses in that particular action. This conclusion commingles the principles underlying both liens. See also Hagearty, 4 Conn. Supp. at 505 (charging lien not allowed because attorney only has a right to a retaining lien); and Gager, 11 Conn. at 173 ("An attorney, as against his client, has a lien upon all papers in his possession, for his fees and services performed in his professional capacity, as well as upon judgments received by him."). The Gager court recognized that the attorney's lien is subject to the equitable claims of both parties and the rights of third persons. Id See CBA Comm. on Professional Ethics and Grievances, Formal Op. 7 (1958) [hereinafter cited as CBA Formal Op. 7] Id. at 69. The committee noted that [w]here retention of the file does not jeopardize the client's interest, the lien right may properly take precedent [over the client's right to have the file where retention is a detriment to the client's legal position]. That is to say, where retention of the file may delay the client in the pursuit of his goal, but will not make it less obtainable, such retention is not ethically objectionable. Id. (emphasis added) Note that in CBA Formal Op. 7, supra note 155, the Committee again relied principally on the holding of Cole, 128 Conn. at 233, 21 A.2d at 396. Also, the CBA again outlined its approach to proper procedure in a conflict between attorney's and client's rights as the responsibility of the second attorney as based on custom in the state. Moreover, the CBA cited to Hagearty, 4 Conn. Supp. at 505 to support the concept that an attorney's lien exists in Connecticut. CBA Formal Op. 7, supra note 155. The CBA failed to mention this case in its Formal Opinion No. 31, discussed at supra note The client's right to discharge a lawyer and to receive back its papers is recognized in MODEL CODE OF PROFESSIONAL RESPONSisLrry DR 9-102(B)(4) (1979) The attorney's right to acquire a lien granted by law is permitted by exception in DR 5-103(A)(2) (1979): "A lawyer shall not acquire a proprietary interest in the cause

34 BRIDGEPORT LAW REVIEW [Vol. 6:77 bly in favor of the attorney in view of the client's right to confidentiality. In justifying the conclusion reached, it emphasized that the "present opinion is grounded in Connecticut law, the Code of Professional Responsibility, and sound policy considerations."' 160 In a more recent informal opinion, 16 ' the CBA Committee on Professional Ethics qualified the previous absolute restriction on retaining liens by allowing the attorney to retain certain papers. Relying on an opinion of the San Diego County Bar Association,' 62 the CBA concluded that it was mandatory for an attorney to return pleadings and other papers filed in court, and letters to the client, witnesses, the opposition and the other attorney.' 56 The opinion allowed the attorney some discretion, providing that the attorney should turn over investigative reports and written expert opinions.'" What is striking is that the Committee permitted an exception to the absolute prohibition against attorney's retaining liens by allowing the attorney to retain notes written by the attorney to himself. The rationale for the exception is that this material is not the property of the client. 165 For the practicing attorney questioning whether to assert a of action or subject matter of litigation he is conducting for a client, except that he may: (1) Acquire a lien granted by law to secure his fee or expenses." MODEL CODE OF PROFES- SIONAL RESPONsIBmrrY Canon 5 (1979). Further, EC 5-7 of the MODEL CODE OF PROFES- SIONAL REsPONSIBILITY (1979) provides: "However, it is not improper for a lawyer to protect the right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of the litigation." Id. (emphasis added) CBA Formal Op. 31, supra note 95. By focusing on the lawyer's ethical obligations, the Committee opted not to recognize the retaining lien CBA Comm. on Professional Ethics, Ethics Op (1984) [hereinafter cited as CBA Ethics Op. 84] See San Diego County Bar Assn., Op See National Sales, 136 Ariz. at -, 667 P.2d at 740, discussed at supra note 2. The court stated that it was inconsistent with the lawyer's duty to avoid prejudice to the client to retain either an original document left with the lawyer for delivery to another person or any personal property left for exhibit at trial The court in National Sales, agreeing that a gray area existed where the attorney's rights were unclear, remanded the case in order for a sufficiently detailed record of the materials in controversy to be established. Id. at -, 667 P.2d at Note that the court established that the burden of proof was on the client to establish which documents were improperly retained. Id. at -, 667 P.2d at See id. at -, 667 P.2d at 740, where the court held that it was proper for the lien to extend to the lawyer's research notes and internal memoranda since this kind of paper work is work product and clearly the lawyer's property. Id.

35 1985] ATTORNEY'S LIENS retaining lien in Connecticut, the answer should be clear. The retaining lien should not be asserted, with the possible exception of attorney work product. There are several reasons for this conclusion, including the custom of this jurisdiction, heightened concern with ethical considerations in this and other jurisdictions,166 and the inability of an attorney to enforce the lien. IV. LIMITATIONS ON ATTORNEY'S LIENS A. Recent State Court Decisions Although most states recognize the existence of attorney's liens, 67 in recent years, the trend of the courts has been to restrict the liens where outweighed by counterveiling public policy interests, 168 personal liberty interests' 9 or ethical concerns For treatment of ethical considerations, see infra notes and accompanying text For a discussion of states which allow attorney's liens statutorily, see supra note 18 and accompanying text See Note, Attorney's Retaining Liens, supra note 5, at The article notes that, while most states recognize the existence of the attorney's lien, limitations of varying degrees are placed on its exercise. As an example, the article states that in recent years, there has been a trend in the courts to suspend an attorney's lien as a matter of public policy where the case involves unreasonable restraint of an impecunious client. Id. For cases which restricted the attorney's liens because of public policy considerations, see, e.g., Schwartz v. Schwartz, 25 Misc. 2d 225, 205 N.Y.S.2d 34 (Sup. Ct. 1960) (attorney in a matrimonial action has only a retaining lien on papers and is not entitled to a charging lien on alimony award); Kalish v. Kalish, 7 Misc. 2d 612, 166 N.Y.S.2d 362 (Sup. Ct. 1957) (alimony fund may not be touched as a matter of public policy). See also Turner v. Woolworth, 221 N.Y. 425, 117 N.E. 814 (1927). In Judge Cardozo's words: "The purpose of alimony is support. Equity, which creates the fund, will not suffer its purposes to be nullified.... [E]quity, confining the fund to the purposes of its creation, declines to charge it with liens which would absorb and consume it." Id. at , 117 N.E. at The Turner court held that the lien on court-ordered fees was allowed only to the extent of the order and not for the true value of the services rendered. However, a separate lien on a loan made by the attorney to the destitute wife was allowed in toto since the lawyer had, in effect, created the fund. Id. at 430. For reference to a case protecting a state interest, see Commonwealth v. Gerlach, 347 Pa. 385, 32 A.2d 410 (1943). "To interfere with the obtaining of revenue [by the state] by the assertion of cross-claims [by the attorney employed by the state to collect benefit claims] would be clearly against public policy." Id. at 387, 32 A.2d at 411. But see Cetenko, 30 Cal. 3d at , 638 P.2d at 1304, 179 Cal. Rptr. at 907. The court there found a public policy reason for authorizing the attorney's charging lien, stating: If an attorney's claim for a lien on the judgment based on a contract for fees earned prior to and in the action cannot prevail over the lien of a subsequent judgment creditor, persons with meritorious claims might well be deprived of legal representation because of their inability to pay legal fees or to assure that such fees will be paid out of the sum recovered in the latest lawsuit.

36 BRIDGEPORT LAW REVIEW [Vol. 6:77 For example, the New York courts recognized an exception where the client was financially insolvent. In Colorado, both the courts and the legislature have taken steps to limit the attorney's retaining lien. 171 Although the retaining lien is statutorily permissible in Colorado, it has been limited in application. Specifically, the Colorado Supreme Court in MacFarlane v. Harthun, 1 72 while recognizing that the attorney had a right to assert a lien against the file of a client who had received legal services, warned that services must be "rendered in a manner consistent with the high standards of the profession. ' 17 The court also stated that "[w]hen an attorney is discharged or removed from a particular case for professional misconduct..., he has no right to assert a 'retaining lien.',,174 The MacFarlane decision implies that if there is a question of attorney misconduct, the attorney acts at his peril in asserting such a lien.1 75 Id Hernandez v. Nierenberg, 15 Misc. 2d 818, 179 N.Y.S.2d 322 (Sup. Ct. 1958) (since the client's failure to pay was not deliberate, requiring payment would hinder the client's ability to secure other representation). One exception to the general rule that an attorney has a retaining lien occurs when papers are essential to defense of a criminal action. See Hauptmann v. Fawcett, 243 A.D. 613, 276 N.Y.S. 523, modified 243 A.D. 616, 277 N.Y.S. 631 (1935) For leading cases limiting the lien because of ethical considerations, see Academy, 51 Cal. App. 3d at 999, 124 Cal. Rptr. at 668; National Sales, 136 Ariz. at 544, 667 P.2d at 738; Ross, 97 Wash. 2d at 598, 647 P.2d at A number of ethics committees of various state bars have found ethical conflicts inherent in the assertion of the attorney's liens and have cautioned against or condemned their use. For example, while invoking the duty to "avoid foreseeable prejudice to the rights of the client" of DR 2-110(A)(2), the Ethics Committee of the Texas Bar found that a lawyer may not ethically attempt to enforce an attorney's lien where the client's legal rights would be prejudiced. Texas Professional Ethics Comm., Formal Op. 395 (1979), as cited in 42 TEx. B.J. 436 (1965) ("whether or not an attorney's lien on the file existed at common law, the discharged attorney may not ethically refuse to turn over the file of his former client"); North Carolina Professional Ethics Comm., Formal Op. 12 (1965) (in some situations assertion of attorney's liens is unethical because unduly prejudicial). See generally ABA Comm. on Ethics and Professional Responsibility, Informal Op (1980) [hereinafter cited as ABA Informal Op. 1461] (same) For case law, see MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978), discussed at infra notes For a legislative example, see CoLo. REV. STAT (1973), discussed at infra note Colo. 38, 581 P.2d 716 (1978). See also People ex rel. Goldberg v. Gordon, 199 Colo. 296, 607 P.2d 995 (1980) (attorney claiming mining stocks as security for unnecessary and unreasonably priced legal work suspended for three years) See McFarlane, 195 Colo. at 42, 581 P.2d at Id See generally Ewing, Attorneys Retaining Liens - Paper Tiger, 10 COLO.

37 1985] ATTORNEY'S LIENS The Colorado legislature also has acted to limit liens. Concerned with the filing of numerous groundless liens against property, the state legislature limited the common law lien in Colorado in In a seminal case, the California Supreme Court rejected the attorney's retaining lien. 177 In Academy of California Optometrists, Inc. v. Superior Court,' 7 8 the court held that a consensual retaining lien was violative of public policy 79 and in conflict with professional ethical standards. 80 While refusing to recognize the common law retaining lien, the court gave limited recognition to the statutory charging lien by contract' and in a few special situations. 8 2 The court ordered files and papers to LAW (1981) (discussion of the retaining lien in Colorado) See, e.g., Note, Legislature Snuffs "Common Law" Liens, 10 COLO. LAW. 301 (1981). The Colorado legislature enacted a statute which provided damages, as well as attorney's fees and criminal penalties, to a property owner in cases where a person offered for recording a lien against real property knowing or having reason to know that the document was forged, groundless, contained a potential misstatement or false claim or was otherwise invalid. See COLO. REV. STAT (1973). Note, Legislature, supra, at See Academy, 51 Cal. App. 3d at 999, 124 Cal. Rptr. at 668. The case involved a dispute over fees between the discharged attorney and a former client. The attorney refused to turn over a voluminous file prepared for the client, thus severely handicapping the client in subsequent litigation. The parties, by contract, had agreed to a lien. See also National Sales, 136 Ariz. at 544, 667 P.2d at 738 (relying on the decision in Academy) Cal. App. 3d 999, 124 Cal. Rptr. 668 (Ct. App. 1975) The Academy court quoted Hulland v. State Bar, 8 Cal. 3d 440, 503 P.2d 608 (1972). "[Wjhen an attorney, in his zeal to insure collection of his fee, assumes a position inimical to the interests of his client, he violates the duty of fidelity to his client." Id. at 448, 503 P.2d at Academy, 51 Cal. App. 3d at 1006, 124 Cal. Rptr. at 672 (quoting WrrKIN, SUMMARY OF CAL. LAW 475 (8th ed. 1973)). Contracts violating canons of professional ethics may for that reason be void. Id. The Academy court also cited DR 2-110(A)(2) and EC 2-32 as a basis for its insistence that an attorney must not retain a client's file, whether discharged or whether he or she withdraws, because he or she must "minimize adverse affect on the rights of his client and the possibility of prejudice to his client." Academy, 51 Cal. App. 3d at 1005, 124 Cal. Rptr. at Id. For California cases allowing charging liens by contract, the Academy court cited: Haupt v. Charlie's Kosher Market, 17 Cal. 2d 843, 112 P.2d 627 (1941); Tracy v. Ringole, 87 Cal. App. 549 (1927); Wagner v. Sariotti, 56 Cal. App. 2d 693, 133 P. 2d 430 (1943); Gostin v. State Farms Ins. Co., 224 Cal. App. 2d 319, 36 Cal. Rptr. 596 (1964); Gelfand, Greer, Popko & Miller v. Shivener, 30 Cal. App. 3d 364, 105 Cal. Rptr. 445 (1973) Academy, 51 Cal. App. 3d at 1003, 124 Cal. Rptr. at 670 (citing WrrKIN, CAL. PROCEDURE 79 (2d ed. 1970).

38 BRIDGEPORT LAW REVIEW [Vol. 6:77 be returned to the client,' 8 holding that the attorney was not entitled to hold papers of no pecuniary value to him and which were essential to the client in order to proceed to trial with a new attorney It should be noted that in a subsequent decision in Arizona, the concurrence interpreted Academy to mean that a retaining lien might still exist in California.'" 8 B. Ethical Considerations 1. Overview The attorney-client relationship imposes a duty on the attorney to act with ordinary professional skill and care. 86 A commonly accepted definition of the standard is "such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake In applying the standard, at least two factors must be taken into consideration: the lawyer's specialized field of practice 18 8 and the geographical area in which the lawyer 183. See Academy, 651 Cal. App. 3d at 1006, 124 Cal. Rptr. at Id. at 1005, 124 Cal. Rptr. at See National Sales, 136 Ariz. at 545, 669 P.2d at 741 (Feldman, J., concurring). The Academy court "did not reach an unequivocal holding that the lien does not exist in California. It held, rather, that the contractual lien considered in that case would not be given effect where recognition would result in sanctioning unethical conduct-a result against public policy." Id See RESTATEMENT (SECOND) OF TORTS 299A (1965); W. PROSSER, LAW OF TORTS 32 (4th ed. 1971). See also Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979) (attorney has duty to use the degree of skill, competence and learning possessed by others in the same profession under like or similar circumstances). Other jurisdictions require a similar standard. See, e.g., Smith v. Lewis, 13 Cal. 3d 349, 530 P.2d 589, 118 Cal. Rptr. 621, (1975); Cook, Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 438 P.2d 865 (1968). This standard is well supported historically. See Goodman & Mitchell v. Walker, 30 Ala. 482 (1857); Gambert v. Hart, 44 Cal. 542 (1872); Cox v. Sullivan, 7 Ga. 144 (1849); Gilbert v. Williams, 8 Mass. 51 (1811) This definitive expression of the attorney's duty appears in Lucas v. Hamm, 56 Cal. 2d 583, 364 P.2d 685, 15 Cal. Rptr. 821 (1961) (no liability for negligence or breach of contract to the attorney who improperly drafted a will) See Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 491 P.2d 421, 98 Cal. Rptr. 837 (1971) (further specialization requires the attorney to meet the standards of knowledge and skill of specialists). See also RESTATEMENT (SEcoND) OF TORTS 299A comment d (1965) (indicating that one representing that he has superior skill or knowledge incurs an obligation to exercise superior skills). However, the question of increased liability appears never to have been specifically decided. See Neel, 6 Cal. 3d at 188 n.22, 491 P.2d at 428 n.22, 98 Cal. Rptr. at 844 n.22. See generally Note, Use of Expert Testimony in Attorney Malpractice Cases, 15 HASTINGS L.J. 584, (1964) (recognizing that specialists do exist within the practice of law); Hoeveler, A Lawyer's

39 1985] ATTORNEY'S LIENS practices." 8 9 The question posed by the assertion of an attorney's lien is whether the lawyer is acting with "ordinary" professional skill and care. Even when the state has enacted legislation allowing attorney's liens, the question is open to ethical concerns and questions. In a state like Connecticut where there are no statutory guidelines and little case law, the question becomes one of subjective interpretation by the attorney and by the courts. For the attorney, a major concern is the possibility that he or she will be liable for injuries proximately caused by breach of the duty of care, 190 whether asserting a charging lien or a retaining lien. 2. Disciplinary Rules Attorney's liens are limited by ethical considerations as exemplified by disciplinary rules. Such rules indicate that the attorney's retaining lien is not an unqualified right. For example, Disciplinary Rule 2-110(A)(2) provides: In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, and delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules. 191 Arguably DR 2-110(A)(2) applies only when an attorney volun- Professional Exposure, 7 TRIAL 52 (May-June 1971) (discussing the standard of care for practitioners and of specialized areas of law most susceptible to malpractice suits) See, e.g., Cook, Flanagan & Berst v. Clausing, 73 Wash. 2d 393, 438 P.2d 865 (1968) (applying a state-wide standard). But see Martin-Marietta Corp. v. Limited Bonding Ins. Co., 218 Pa. Super. 869, 279 A.2d 324 (Pa. Super. Ct. 1971) (particular locality is an important consideration) For cases involving breach of the duty of care, see Neel, 6 Cal. 3d at 178 n.3, 491 P.2d at 423 n.3, 98 Cal. Rptr. at 839 n.3; American Hemisphere Marine Agencies v. Kreis, 40 Misc. 2d 1090, 244 N.Y.S.2d 602 (Sup. Ct. 1963) (pleadings clearly showing a breach of professional fidelity were sufficient proof of causation such as to overcome a motion for dismissal by the defendant attorney) MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR (A)(2) (1979) (emphasis added). For reference to a contemporary state court interpretation of DR (A)(2) as applied to an attorney's retaining lien, see In re Kaufman, 93 Nev. at 458, 567 P.2d at 957. The attorney was reprimanded publicly for withdrawing without formal notification to the client, and for retaining the client's discovery file in order to compel a subsequent attorney to divide a contingent fee.

40 BRIDGEPORT LAW REVIEW [Vol. 6:77 tarily withdraws from a case. DR 7-101, which requires an attorney to represent a client zealously, would cover the situation where an attorney is discharged. It contains a general prohibition against intentionally prejudicing or damaging a client during the course of the professional relationship. 9 a The conclusion to be drawn is that where an attorney is discharged, the only time he or she may safely assert a retaining lien is where there is no question of attorney misconduct. 193 Even then, this disciplinary rule suggests that, at a minimum, the attorney has a duty to refrain from intentionally prejudicing his or her client. 3. Ethics Opinions At least three state bar associations have indicated that it is ethically improper to impose a retaining lien, particularly in circumstances where the client's interests would be prejudiced.' Furthermore, in a recent informal opinion, the ABA underscored the qualified nature of the attorney's right in view of ethical considerations.i 95 EC 2-23 exhorts a lawyer to forego a legal right to "sue a client for a fee unless necessary to prevent fraud or gross imposition by the client."" ' In applying this standard the ABA stated that the lawyer must "evaluate his or her interests against interests of the client and of others would be substantially and adversely affected by the assertion of the lien.' 197 The ABA set out several factors to be considered, such as the financial ability and sophistication of the client, whether the client clearly understood and agreed to pay the amount now owing, 192. MODEL CODE OF PROFESSIONAL RESPONsIBLiTY DR (A)(3) (1979) See, e.g., Radinsky, 182 Colo. at 259, 512 P.2d at 627 (even where attorney's liens are recognized, an attorney runs the risk of disbarment if the lien is asserted in bad faith, as here). See Crawford v. Logan, 656 S.W.2d 360 (1983). The Crawford court held that by retaining a tape recording of an interview with a potential witness in a divorce proceeding, the discharged attorney had violated the disciplinary rule requiring delivery of all papers upon discharge. The court remanded the case to determine whether such conduct on the part of the attorney, even if well-intentioned, warranted total forfeiture of his fee. Id. at For discussion of the opinions of state ethics committees in Texas and North Carolina, see supra note See ABA Informal Op. 1461, supra note 170. Mere existence of a legal right does not entitle a lawyer to stand on that right if ethical considerations require that he forego it. Id MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-23 (1979) See ABA Informal Op. 1461, supra note 170.

41 1985] ATTORNEY'S LIENS whether imposing the lien would prejudice important rights or interests of the client or other parties, whether failure to impose the lien would result in fraud or gross imposition upon the attorney, and whether less stringent means were available to resolve the matter. 198 According to the ABA, there are three value judgments the lawyer must make in asserting the lien, depending on different circumstances. The ABA cited the situation: (1) where the lawyer should forego the lien; (2) where the lawyer should be hesitant to assert it; or (3) where the lawyer would be clearly allowed to assert it. As examples of situations in which the lawyer should forego asserting the lien, the ABA cited instances where the lawyer knew of the client's financial inability at the beginning 9 or failed to reach agreement as to the amount or method of calculating the fee. Similarly, the lien should be foregone if exercise of the retaining lien would prejudice the client's ability to defend against a criminal charge, or to assert or defend a similarly important personal liberty interest. Next, the lawyer should be hesitant to enforce the lien "if the court or other parties, or the public interest would be adversely and seriously affected by the lien." 200 Finally, the lawyer would be able to assert the lien justifiably "when the client is financially able but deliberately refuses to pay a fee that was clearly agreed upon and is due, since this conduct would constitute gross imposition by the client." 2' ' The ABA concluded that the Model Code provisions provide only general guidelines and do not set forth applicable rules for every situation, and that the burden is on the lawyer to determine whether the provisions of the Model Code justify the assertion of an attorney's lien to which the lawyer may be entitled under law Id Id. "Financial inability of the client to pay the amount owing should also cause the lawyer to forego the lien because the failure to pay the fee is not deliberate and thus does not constitute fraud or gross imposition by the client." See also Goldberg, 199 Colo. at 296, 607 P.2d at 995 (attorney suspended for three years for several reasons, among them the wrongful assertion of an attorney's lien against an impecunious client) ABA Informal Op , supra note Id Id.

42 BRIDGEPORT LAW REVIEW [Vol. 6:77 V. ALTERNATIVE METHODS IN FEE DISPUTES Because lawyers are steeped in the adversarial system, they may be inclined to use an attorney's lien to recover a fee rather than to utilize other more placable methods. However, in view of the lawyer's professional responsibility to the client, the recent limitations by some courts, the ambiguity of the law in Connecticut, and the complexities sometimes attendant upon asserting either lien, 20 3 the lawyer should think first of alternative methods rather than prematurely resort to the lien The attorney and the client can agree to a fee arrangement as an assignment. The attorney could also adopt the rationale of the CBA opinion by drafting an agreement with the lawyer subsequently hired Alternatively, the lawyer can have all payment delivered to counsel before being turned over to the parties. 206 The attorney can use the ordinary business practice of referring the outstanding bill to a collection agency. Another option is to take no ac See Adams, 597 F.2d at 570 where the court addressed issues about the nature of the attorney's lien, the jurisdictional basis of the decision under state or federal law, and the ethical problems relating to conversion and reasonable fees. In Adams, the plaintiff law firm retained possession of $300,000 in cash against a claimed fee of $75,000. While the law firm called the retention a retaining lien, in fact, the law firm had asserted a charging lien. This illustrates the confusion experienced by many lawyers as to the nature of the lien and their rights under them. The question of federal and state law also arose. The circuit court determined that in the absence of recognition of the lien under federal common law, Florida common law had to be examined "to determine whether it condones what otherwise would be a conversion by the lawyer of property belonging to the client." Id. at 573. The court concluded that under Florida law, an attorney is not permitted to withhold payment to a client of his money over and above the maximum amount of the attorney's claim against the client. Id. at 574. It is of interest to note that, in terms of a lawyer's liability, the client Westinghouse countered with a claim that the attorney's wrongful retention should deprive the attorneys of any fee whatsoever. Id. at 575. The court refrained from ruling on the point, stating that "[sluch a holding would have to be in the exercise of a trial judge's equitable discretion, if available... at all." Id One Connecticut judge, in addressing newly admitted members of the Connecticut Bar, urged lawyers to use the lawyer's tools "with care, consideration, and competence, and as an instrument of justice, and it will follow, as the night the day, that [lawyers] will have fulfilled [their] responsibilities as attorneys-both to client and to society." Grillo, The Lawyer's Role in the Adversial System, 45 CONN. B.J. 285, 288 (1971) For a discussion of the proper procedure to be followed by the two attorneys, see supra notes and accompanying text See Wentworth, supra note 5, at 203, where it is noted that insurance companies almost always pay directly to the attorney, who deducts his or her claim before turning the balance over to the client.

43 19851 ATTORNEY'S LIENS tion and simply allow the client's delinquency as a business loss. A final alternative would be to bring suit for compensation on the basis of an express or implied contract or on the basis of quantum meruit. 07 While lawyers may sue, 2 0 they are generally reluctant to do SO.209 Besides the adverse publicity which may outweigh an eventual gain, a lawyer will incur expenses and there will almost certainly be delay in reaching adjudication. Furthermore, state bar associations and courts encourage compromise rather than suit. 210 VI. CONCLUSION A retaining lien has been recognized at common law in Connecticut. But no statute exists or has existed to codify, limit or 207. See DiFrancesco v. Goldman, 127 Conn. 387, 16 A.2d 828 (1940). The court allowed an attorney to recover compensation on basis of a contract made after commencement of services. If no contract is found, the attorney is allowed to recover the reasonable value of services. Id. at , 16 A.2d at See also Rowell v. Ross, 87 Conn. 157, 87 A. 355 (1913) (the attorney is allowed to recover on the basis of mutual assent, but in the absence of mutual assent, the law will impose an obligation on the client to pay a reasonable sum The suit has failed in Connecticut where the legal services were characterized by fraud, bad faith or negligence. See Brackett v. Norton, 4 Conn. 517 (1823) (no recovery by attorney where he acted fraudulently). At least one Connecticut case disallowed recovery because the contract was illegal. See McCarthy v. Santangelo, 137 Conn. 410, 78 A.2d 240 (1951). The McCarthy court did not allow recovery on the basis of quantum meruit because the attorney's agreement to accept a portion of alimony as compensation was illegal and thus void as violative of public policy. Id. at 414, 78 A.2d at 242. The rationale for the holding of the McCarthy court was that, since the state does not favor divorces, an agreement to be compensated out of the alimony award would offer a strong inducement to the attorney to press for the dissolution of the marriage for personal gain. Id. at 412, 78 A.2d at Suits by lawyers were not allowed by the early English courts. (See supra note 1 discussing the distinction in attitudes on such suits between English and American courts) See ABA Committee on Ethics and Professional Responsibility, Formal Op. 250, 251 (1943). Suits to collect fees should be avoided and should be limited to circumstances imperatively requiring resort to suit. Id. See also National Sales, 136 Ariz. at 546, 667 P.2d at 740. The court recognized the validity of a retaining lien in the absence of a specific statute on the theory that courts, when not bound by precedent or legislation, followed traditional common law. The court stated further that compromises which avoid the assertion of the attorney's lien rights are preferable to law suits. Id. See also ABA CODE OF PROFESSIONAL RESPONSIBLITY EC 2-23 (1983), which states: "A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client." Id.

44 BRIDGEPORT LAW REVIEW [Vol. 6:77 regulate this common law lien. Moreover, the Connecticut courts have disfavored the lien, and custom in Connecticut, as enunciated by the CBA, has refused to recognize the retaining lien altogether. Thus, attorneys are advised not to retain client papers when discharged 11 or when they withdraw, 212 but to seek alternative methods of redress. Like the retaining lien, there have been no statutory provisions for a charging lien in Connecticut. However, the common law charging lien is recognized by the courts as a valid right of an attorney which is enforceable at law. Moreover, custom supports the exercise of this attorney right in this jurisdiction. Notwithstanding the acceptance of the charging lien, attorneys must be mindful of the ethical considerations. The attorney is bound always to put the interest of the client first, so that the "[m]ere existence of a legal right [would] not entitle a lawyer to stand on that right if ethical considerations [would] require that he forego it.,, 21 a In general, attorneys should seek to protect their own legitimate rights by other methods more in keeping with the practice of law as an honored profession. In equity, however, lawyers should have at least as much protection as other professionals and creditors of the client. When asserting a lien is fair and equitable in view of all the circumstances, attorneys should be allowed to employ both liens to secure their rights. As a final suggestion, the legislature should follow the lead 211. The right to substitute counsel is generally accepted as a client right. See O'Connell v. Superior Court, 2 Cal. 2d 418, 41 P.2d 334 (1935) (client is not deprived of the right to substitute counsel by the fact that the attorney has rendered services, or has advanced money in either prosecuting or defending the action). See also ABA Committee on Ethics and Professional Responsibility Formal Op. 209 (1940). In Connecticut, the client has such a right. See CBA Formal Op. 31, supra note 95 (client has unequivocal right to discharge the attorney) See, e.g., Fiille v. Gannon, 165 Conn. 813 (1973) (the motion by the law firm to withdraw its appearance was granted; also counsel was directed to give notice of the court's order to the client.) There are occasional denials, as in State v. Leslie, 165 Conn. 792 (1973) (attorneys for the defendant were denied permission to withdraw because fugitive defendant would be deprived of counsel while his appeal was still pending) See ABA Formal Op. 1461, supra note 170. The Committee concluded that the standard of EC 2-23, which exhorts lawyers to forego a legal right to "sue a client for a fee unless necessary to prevent fraud or gross imposition by the client," should be applied in determining whether or not to exercise an attorney's lien. Thus, the lawyer is required "to evaluate his or her interests against interests of the client and of those who would be substantially and adversely affected by assertion of the lien." Id.

45 1985] ATTORNEY'S LIENS of a majority of the other states and enact legislation on attorney's liens. 214 The effect of such legislation would be to remedy the defect in the common law liens, clarify the law, and define and protect the rights and duties of all parties-clients as well as attorneys. Barbara C. S. Shea 214. For Attorney Wentworth's statutory proposal for Connecticut, see Wentworth, supra note 5, at 204. In sum, the statutory proposal would give Connecticut attorneys both a retaining lien and a charging lien. The retaining lien would be perfected without notice and would be superior to all other liens except tax liens and prior perfected liens. Any court of competent jurisdiction could enforce or release the liens "on such terms and conditions as justice may require." Id. at 206.

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