ATTORNEY LIEN CLAIMED:   Is It Worth the Paper It is Written on?

By Jon D. Starr

It has become a somewhat common practice by attorneys representing persons involved in personal injury claims to type the words "Attorney Lien Claimed" on both initial correspondence to insurance companies and correspondence advising that the attorney no longer represents the personal injury claimant. Every few months a call comes into our firm from an insurance company claims person advising that a claim has been settled, but an attorney, or sometimes even multiple attorneys, who have previously represented the claimant have indicated that they have a lien. The claims person needs to know if the previous attorney or attorneys have a valid lien which may necessitate the need to put any prior attorneys' names on the settlement check. This article is to provide some guidance to both attorneys and insurance claims persons regarding when a valid attorney lien exists and when it does not.

Statutory Charging Lien

The Oklahoma statute states that a statutory charging lien can only be created after the commencement of an action or the filing of an answer containing a counterclaim.¹ Specifically, Okla. Stat. tit. 5, § 6 provides as follows:

Thus, the statute contains two requirements to create a statutory charging lien: (1) commencement of an action, or filing of a counterclaim; and (2) notice given either by noting "Lien Claimed" on a pleading in a court of record, or by serving notice on any defendants or proposed defendants setting forth the nature of the lien the attorney claims and the extent of the lien.

Oklahoma case law gives further guidance on this issue.³ In Wilcox v Mid-Continent Cas. Co.,⁴ an attorney had been hired by an individual injured in a motor vehicle accident to provide representation pursuant to a contingent fee agreement.⁵ The client then discharged the attorney and refused to honor the contingent fee agreement.⁶ The attorney alleged that he had a "statutory, legal, and/or an equitable lien against the insurance proceeds" payable by the insurance company to his former client, and brought suit against the insurance company to enforce this lien.⁷

The insurance company moved to dismiss the action for failure to state a claim upon which relief could be granted because there had never been any pleadings filed to enforce the client's cause of action.⁸ The trial judge granted the Motion to Dismiss, and on appeal, the Court of Appeals affirmed.⁹ The Court relied on Republic Underwriters Insurance Company v. Duncan,¹⁰ for authority that a cause of action must be commenced before a statutory lien can be created.¹¹ The Court held that since it was undisputed that no pleadings had been filed on behalf of the client, the attorney could not establish the condition precedent for a statutory lien.12

Although the commencement of an action or the filing of a counterclaim is a precondition to creating a statutory charging lien, failure to claim the lien at that point does not waive the right to later create a valid lien by filing a separate lien notice form in the case and giving notice.¹³ A practitioner should, however, not attempt to go back and write "lien claimed" on a document already in the court file because that action would be a felony under Title 21 O.S. §§ 461 and 462.¹⁴

Further, the phrase "or proposed defendant or defendants" in the statute might lead one to erroneously believe that pre-suit notification of a lien claim could be sufficient to create a lien. However, the Oklahoma Supreme Court has clearly stated that commencement of an action is a condition precedent to the creation of a lien.¹⁵ Therefore, the only construction which can be given to this statutory language is that in the event a lawsuit has been filed against one defendant and other potential defendants exist who have not yet been named, then notice could be provided to the potential defendants after the commencement of an action against the first defendant, and by so doing a valid lien could be created since the precondition of an action being commenced arguably would be met.

It is clear from Oklahoma case law that notice of a statutory charging lien must be given prior to a settlement in order to be perfected.¹⁶ In Smith v. Westgate Oil Co.,¹⁷ a settlement was made on January 28, 1932.¹⁸ Notice of the lien was not served until February 4, 1932, subsequent to the settlement.¹⁹ The Court held that no lien existed when the settlement was made, so no liability arose by reason of the alleged settlement by the post settlement notice of a lien.²⁰

Common-Law Possessory or Retaining Lien

"The sole basis in law for an attorney's lien upon a cause of action is [the charging lien found in Okla. Stat. tit. 5, § 6]."²¹ The Oklahoma Supreme Court has, however, recognized that there are two types of liens by which an attorney may secure payment for services. Besides the statutory charging lien, there is a common-law possessory or retaining lien which can be asserted against a client's property "when: (1) Properly chargeable fees are owing and due and (2) the lawyer is in possession of property not otherwise designated for a 'specific purpose.' "²² The common law possessory or retaining lien, however, has not been adopted by statute.²³

Further, the common law possessory or retaining lien cannot be actively enforced by foreclosure or sale; it merely allows retention of property by the attorney until payment is made.²⁴ The Oklahoma Supreme Court in State ex rel. Oklahoma Bar Association v. Cummings,25 however, states in a footnote that the lack of forecloseability of the common law lien does not render it ineffective. The note reads in part as follows:

The Court, however, does point out that Rule 1.4(b), Rules Governing Disciplinary Proceedings,27 limits the availability of property for attachment of a retaining lien.28 The rule prohibits a lawyer from taking money or property entrusted to him or her for a "specific purpose" and applying it to the attorney fee claim.29 An example of this can be seen in State ex rel. Oklahoma Bar Association v. Meek,30 in which the attorney, Meek, commingled the client's funds when she deposited a check for support alimony in her operating account rather than her attorney trust account.31 The Court said that "when Meek applied those funds to payment of rent, office overhead, etc., she converted funds entrusted to her for the purpose of expunging the support alimony debt [and this was] clear and convincing evidence that Meek violated Rule 1.4, Rules Governing Disciplinary Proceedings,32 by applying the money toward her claimed fee."33

Further, it is important to remember that Rule 1.15 of the Rules of Professional Conduct provides specific guidelines for how to handle client's property when it is in the possession of the attorney.³⁴ First, the property of a client or third person that is in the lawyer's possession in connection with representation is to be held separate from the lawyer's own property.³⁵ Second, the attorney is required upon receiving funds or other property in which the client or third person have an interest to promptly notify the client or the third person, and third, the lawyer is required to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive, except that portion of the property where both the attorney and the other person claims an interest.³⁶ The fact that there is a dispute between the lawyer and another person as to the respective interest in the property requires the lawyer to keep that portion in dispute until the dispute is resolved, but does not allow the attorney to retain other property which is not subject to the dispute.³⁷

The Oklahoma Supreme Court has been quite clear that a lawyer may not avail himself or herself of a counterclaim or set-off for fees against any money or property coming into the lawyers hand for a specific purpose and a refusal to account for and deliver the money or property on demand is deemed a conversion subjecting the lawyer to suspension or disbarment.³⁸ In State ex rel. Okla. Bar Ass'n v. Busch,³⁹ Justice Opala writing for the Court stated as follows:

Defendant May Be Estopped From Denying Lien in Event of Fraud

One circumstance where the Oklahoma Supreme Court has allowed an attorney lien to be valid against a third party to the attorney-client contract, although not in compliance with the statute, is in the event the third party has used fraud to avoid the attorney lien from being perfected.⁴¹ In National Aid Life Ins. Co. v. Nash,⁴² the attorneys were employed to collect from the defendant life insurance company, the value of two life insurance policies issued by the defendant.⁴³ At controversy between the client and the life insurance company was whether the policies had been permitted to lapse and the policy holder's desire to recover their alleged present value.⁴⁴ The attorneys made a number of attempts to settle the claim without success.⁴⁵ The client instructed the attorneys to prepare the suit and stated that if the matter was not settled by a date certain, he would return and file the case.46 The attorneys were ready to prepare the suit papers, but the client did not return.47 In the meantime, the attorneys notified the life insurance company that they claimed a lien on Moore's claim for reasonable fees.⁴⁸

The Court found evidence that the life insurance company had made promises to the insured's attorneys that it would not settle in the attorneys' absence, and the attorneys' reliance on the promises had induced them to refrain from filing suit.49 The life insurance company, however, without the attorneys' knowledge held conferences with the attorneys' client for purposes of reaching a settlement, and fraudulently, collusively, and with total disregard to the attorneys' rights under the contract of employment, advised the client of legal aspects of the case, and fraudulently induced the client to breach his contract with the attorneys and made a direct settlement with him.50

Under these somewhat extreme facts, the Court held that the life insurance company, by reason of its actions, was estopped from denying the plaintiffs an attorney's lien.⁵¹ The Court stated that the life insurance company promised not to settle with the client in the attorneys' absence and that the attorneys had been induced by the life insurance company to postpone filing the suit which would have included the lien claim pursuant to the attorneys' rights under the statute for a charging lien.⁵²

Disputes over Amount Owed on Statutory Charging Lien Decided by Court

Finally, in the event that the attorney does have a valid statutory charging lien and a dispute arises as to what amount the attorney will receive under the lien, "an action to enforce an attorney's lien on proceeds from settlement of client's cause of action is of equitable cognizance and triable to the court without a jury."⁵³ In this situation, the Court should take into account evidence of the relative value of each of the attorneys' services to the client and award the attorney his or her fair share (quantum meruit).⁵⁴

In Martin v. Buckman,⁵⁵ the Court of Appeals stated that: "[i]f an attorney is discharged without cause, the lawyer working on a contingent fee basis is entitled to receive for his services a proportionate share of any contingent fee fund eventually created."⁵⁶ The Martin Court outlined that in determining the quantum meruit entitlement of both the discharged lawyer and the latter one, the Court should consider that the discharged attorney had a contract, and that the attorney undertook the risk of investing time, services and expenses to achieve a recovery for the client based upon a promise that the attorney would receive a fair contractual share of the recovery for the services. The Court stated that:

Summary

In the absence of fraud, only statutory charging liens must be honored by third parties to the attorney/client contract, such as defendants, proposed defendants or their insurers. Any settlement, absent fraud, that is entered into prior to the commencement of the lawsuit cannot have a statutory attorney lien, and notice of a lien given after a settlement is made is not effective to create a valid lien. Thus, "Attorney Lien Claimed" on correspondence prior to litigation being filed or after a settlement has been reached, is probably not worth the paper it is written on.

In the event, a lawsuit is on file when the attorney withdraws from representation or a lawsuit has been filed and dismissed without prejudice, a search of the Court records, as well as consultation with the actual defendant, should be done by the claims personnel to determine if the attorney gave proper notice of a statutory charging lien in accordance with the statute. If the withdrawing attorney has complied with the statutory lien, his or her best interest would probably be served by including a copy of the notice sent to the defendant or proposed defendant after the lawsuit has been commenced, or by sending a copy of the pleading on which "Lien Claimed" was noted with the letter to the insurance company. In the absence of such documentation, a search of the Court file will be necessitated by the insurance company or self-insured defendant, which will only serve to delay the issuance of the settlement check, and ultimately, delay the payment to the attorney of his or her portion of the proceeds.

A common-law possessory or retaining lien allows an attorney to retain property in his possession, not designated for a "specific purpose," until his or her fees are paid. However, an attorney should be very careful and not attempt to assert the lien against money or property designated for a "specific purpose" because it will be viewed as a conversion and the result can be suspension of the attorney's license or disbarment.

Ultimately, if the client and all attorneys involved cannot determine the allocation of the settlement proceeds, the court, in a non-jury proceeding, must determine what the attorney is to receive on a quantum meruit basis. The quantum meruit analysis must focus primarily on what contribution each attorney's effort made to the ultimate recovery.

JON DOUGLAS STARR received his B.S. in international public administration from Oklahoma State University and his juris doctor with distinction from the University of Oklahoma. He has an AV rating by Martindale-Hubbell and is a partner with the law firm of Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd in Tulsa. Since being licensed to practice in fall 1991, his practice has focused on civil litigation. He has tried more than 50 cases to jury verdict and presented appellate argument before the Tenth Circuit Court of Appeals. He also works in the area of uninsured motorist arbitration, both as an advocate and an arbitrator. He is on the Board of Directors for the Oklahoma Association of Defense Counsel, member of the OBA Evidence Committee and Tulsa County Fee Arbitration Committee. His practice includes all areas of civil litigation, including commercial, contracts, torts, insurance law, products liability and defamation.

1. Okla. Stat. tit. 5, § 6 (1996). 2. Id. 3. See State ex rel. Okla. Bar Assoc. v. Meek, 895 P.2d 692 (Okla. 1994); State ex rel. Okla. Bar Ass'n v. Cummings, 863 P.2d 1164 (Okla. 1993); Republic Underwriters Ins. Co. v. Duncan, 713 P.2d 568 (Okla. 1985); Wilkerson v. Walker, 167 P.2d 372, 374 (Okla. 1946); Wilcox v. Mid- Continent Cas. Co., 971 P.2d 405 (Okla. Ct. App. 1998). 4. 971 P.2d 405 (Okla. Ct. App. 1998). 5. Id at 405. 6. Id at 405. 7. Id at 405. 8. Id at 406. 9. Id. 10. 713 P.2d 568 (Okla. 1985). 11. See Wilcox v. Mid-Continent Cas. Co., 971 P.2d 405, 406 (Okla. 1998). 12. Id. at 406. 13. Oklahoma Bar Association v. Miskovsky, 804 P.2d 434, 439-40 (Okla. 1990). 14. Id. at 439. 15. See Republic Underwriters Ins. Co. v. Duncan, 713 P.2d 568 (Okla. 1985). 16. See Smith v. Westgate Oil Co., 53 P.2d 1090 (Okla. 1936). 17. Id. 18. Id. at 1091. 19. Id. at 1091. 20. Id. at 1092. 21. See Republic Underwriters Ins. Co. v. Duncan, 713 P.2d 568, 571 (Okla. 1985) 22. See State ex rel. Okla. Bar Ass'n v. Cummings, 863 P.2d 1164, 1169 (Okla. 1993). 23. Id. at 1169. 24. See Burns v. Pratt, 31 P.2d 106, 108 (Okla. 1934); and State ex rel. Okla. Bar Ass'n v. Cummings 863 P.2d 1164, 1169 (Okla. 1993) 25. 863 P.2d 1164 (Okla. 1993). 26. Id. at 1169 n.24. 27. 5 O.S. 1996, Ch. 1, App. 1-A, Rule 1.4(b).       (b)Where money or other property has been entrusted to any attorney for a specific purpose, he must apply it to that purpose. He may not avail himself of a counterclaim or set-off or fees against any money or other property of his client coming into his hands for such specific purpose, and a refusal to account for and deliver over such money or property upon demand shall be deemed a conversion. This does not apply to the retention of money or other property otherwise coming into the hands of a lawyer, and upon which the attorney has a valid lien for his services. 28. See State ex rel. Okla. Bar Ass'n v.Cummings, 863 P.2d 1164, 1170 (Okla. 1993). 29. See, State ex rel. Okla. Bar Ass'n v. Miskovsky, 824 P.2d 1090, 1095-96 (Okla. 1991); State ex rel. Okla. Bar Ass'n v. Brown, 773 P.2d 751, 753 (Okla. 1989); State ex rel. Okla. Bar Ass'n v. Perkins, 757 P.2d 825, 830-31. (Okla. 1988). 30. 895 P.2d 692 (Okla 1994). 31. Id. 32. 5 O.S. 1991, Ch. 1, App. 1-A, Rule 1.4(b). 33. State ex rel. Okla. Bar Ass'n v Meek, 895 P.2d 692, 698 (Okla. 1994). 34. 5 O.S., Ch. 1, App. 3-A, Rule 1.15. 35. 5 O.S., Ch. 1, App. 3-A, Rule 1.15(a) 36. 5 O.S., Ch. 1, App. 3-A, Rule 1.15(b)(c) 37. 5 O.S., Ch. 1, App. 3-A, Rule 1.15(c) 38. See State ex rel. Okla. Bar Ass'n v. Williams, 911 P.2d 905 (Okla. 1995); and State ex rel. Okla. Bar Ass'n v. Busch, 976 P.2d 38 (Okla. 1998). 39. 976 P.2d 38 (Okla. 1998) 40. Id. at 54-55 41. See National Aid Life Ins. Co. v. Nash, 136 P.2d 883 (Okla 1943). 42. Id. 43. Id. at 883. 44. Id. at 883. 45. Id. at 883. 46. Id. at 883. 47. Id. at 883. 48. Id. at 883. 49. Id. at 884. 50. Id. at 883-84. 51. Id. at 884. 52. Id. at 884. 53. See Martin v. Buckman, 883 P.2d 185, 192 (Okla. Ct. App. 1994) (citing to Barnsdall v. Curnutt, 174 P.2d 596 (Okla. 1946)). 54. See, Kelly v. Old Republic Ins. Co., 892 P.2d 668. 670 (Okla. App. 1995); First Nat'l Bank and Trust Co. of Tulsa v. Bassett, 83 P.2d 837, 840 (Okla. 1938). 55. 883 P.2d 185 (Okla. Ct. App. 1994). 56. Id. at 192. 57. Id. at 194-95.