Why,Settle,for,Charging,Lien,N law Why Settle for a Charging Lien?
Bankruptcy is a situation, wherein an individual is termed as unable to discharge all the debts. When a person or a company is not able to pay off its creditors, it has an obligation to file a bankruptcy suit. In fact, a bankruptcy suit is a When you work with an attorney, you will have no problem reducing the risks associated with getting your case in front of a judge and jury, or other formal court, when you need to. However, every case is different. It is important to work wi
New York Stateprovides three different remedies to an attorney discharged by his clientwithout cause, being: (a) the retaining lien; (b) the charging lien; and(c) an action for breach of contract damages. See, Butler, Fitzgerald& Potter v. Gelmin,235 AD2d 218 (1st Dept. 1997). It is important forthe attorney to be familiar with the three different remedies in order toeffectively utilize them to get his legal fee paid.1. Theretaining lien: The retaining lien gives an attorney the right tokeep, with certain exceptions, all of the papers, documents, and other personalproperty of the client which have come into the lawyers possession in hisprofessional capacity, as long as those items are related to the subjectrepresentation. This type of lien is founded upon physical possession, and anattorney may forfeit his right to a retaining lien by voluntarily giving awayany of the items to which the lien may have attached. This type of lien lastsuntil the attorneys disbursements have been fully paid and, generally, hislegal fee has been determined or set by the court.2. Thecharging lien: The second remedy available to an attorney for therecovery of his fee is governed by Judiciary Law Section 475, which provides:From the commencementof an action, special or other proceeding in any court or before any state,municipal or federal department, except a department of labor, or the serviceof an answer concerning a counterclaim, the attorney who appears for a partyhas a lien upon his clients cause of action, claim or counterclaim, whichattaches to a verdict, report, determination, decision, judgment, or finalorder in his clients favor, and the proceeds thereof in whatever hands theymay come, and the lien cannot be affected by any settlement between the partiesbefore or after judgment, final order or determination.The charging lienis predicated on the idea that the attorney has, by his skill and effort,obtained the judgment, and should have a lien thereon for his compensation.Further, enforcement of the charging lien is founded upon the equitable notionthat the proceeds of a settlement are within the control of the court.3. Plenaryaction against client: The third remedy would be the commencement bythe attorney of a plenary or separate action against his client for damagesfor breach of contract. The court will need to determine the reasonable valueof the attorneys services rendered on behalf of the client (colloquiallyreferred to as quantum meruit). This case accrues immediately upon anattorneys discharge, and unlike the retaining lien and charging lien, it maybe enforced against all of the clients assets. In determining the value of theservices rendered by the attorney, the court will take into consideration anumber of factors, including: the terms of any percentage fee agreement; natureof litigation; difficulty of the case; amounts customarily charged by attorneysfor such services; and results achieved.It is important tonote that the attorney may pursue any or all of the three remedies at the sametime (the full court press method) in order to get the bill paid. The threedifferent remedies are cumulative and not exclusive; the client cannot arguethat the attorney elected to proceed with one certain remedy versus anotherremedy.by Richard A. Klass, Esq.Copyright 2006License InformationWhy Settle for aCharging Lien? by Richard A. Klass, Esq. is licensed under a Creative CommonsAttribution-Noncommercial-No Derivative Works 3.0 United States License. Forpermissions beyond the scope of this license, please contact Mr. Klass(email:[email protected]). Insert the words "reprint permissionrequest" in the subject line of the email. PublishingGuidelinesPermission isgranted to publish this article electronically in free-only publications, likea website or ezine (print and non-free publications require permission) as longas the resource box is included without any modifications. All links must beactive. A courtesy copy is requested on publication (email:[email protected]). The "About theAuthor" box must be included in any publications. Article URL:http://courtstreetlaw.com/articles/attorney-fee-collections-articles/why-settle-for-charging-lien.html Author Name:Richard A. Klass, Esq. Contact EmailAddress:[email protected] Author's Firm'sWebsite:www.CourtStreetLaw.com Word Count:610 words
Why,Settle,for,Charging,Lien,N