Attorney’s fees can take a number of different forms, from flat fees to hourly fees, depending on the case involved. In some cases, a specific lien against the proceeds in a client’s case — known as an attorney’s lien — can secure the attorney’s fees. Attorney liens allow lawyers to hold onto client property until the client pays for the legal services provided.
Statutory Provision for Attorney Liens
Massachusetts General Laws chapter 221, section 50 sets out the rules regarding attorney liens. This law provides for an attorney’s lien in an action, counterclaim or other proceeding in any court. It also provides for an attorney’s lien in an appearance in any proceeding before any state or federal department. Further, under the statute, the attorney may obtain a lien for reasonable fees and expenses from the proceeds of the client’s case.
Under the above statute, the attorney or client may seek an attorney’s lien in the court in which a proceeding is pending. That court also has the authority to determine and enforce the lien. If there is no proceeding pending, however, the Superior Court has the authority to determine and enforce an attorney’s lien for reasonable fees and expenses.
It is clear that attorney liens attach at the onset of a case. Typically, a notice of the attorney’s lien is filed with the court. Then, a motion to enforce the attorney’s lien follows this notice. In addition, an affidavit of the attorney typically accompanies the motion. This affidavit can detail the circumstances regarding the attorney-client relationship and fee structure.
Attorney Liens as Charging Liens
It is also clear that an attorney’s lien is considered a charging lien. It attaches to a judgment or recovery awarded to the client. This secures payment of the attorney’s fees and expenses.
In Elbaum v. Sullivan, the Massachusetts Supreme Judicial Court upheld an award based on an attorney’s lien. The Court held that the attorneys involved could be compensated on the basis of their several contributions to the ultimate result achieved in the case. Elbaum v. Sullivan, 344 Mass. 662 (1962).
Attorney Liens in Divorce Cases
Attorney’s liens are available in divorce matters, as well. For example, in Howard v. Moscone, the court ordered that, where the defendant (client) obtained a judgment in her divorce action, the plaintiff (attorney) was entitled to a lien against assets obtained by the defendant pursuant to that judgment. Howard v. Moscone, 6 Mass. L. Rep. 365 (1997).
The Court’s Role in Law and Equity
In Torphy v. Reder, the Massachusetts Supreme Judicial Court explained that cases dealing with attorney liens involve both an issue at law and an issue in equity. Torphy v. Reder, 357 Mass. 153. (1970). In effect, attorney liens involve establishing the client owes a debt to the lawyer: an issue of law. Here, the law entitles the client to a trial by jury. However, attorney liens also involve the lien which attaches: an issue of equity, which is a matter for the judge.
In this case, the high court stated: “[A] petition to enforce a lien under § 50 is analogous to a bill to reach and apply under G. L. c. 214, § 3 (7), in that there is first, a law aspect to the proceeding (the establishment of an indebtedness from the defendant to the plaintiff) and second, an equity aspect (the process of collecting the debt, if established, out of property rights which cannot be reached on an execution). The respondent is entitled to trial by jury respecting the alleged debt. He is not entitled to trial by jury on the remedial aspect of the case which is purely equitable in nature.”
Determining the Fairness and Reasonableness of Attorney Fees
In determining what is a fair and reasonable attorney charge for services, “many considerations are pertinent, including the ability and reputation of the attorney, the demand for his services by others, the amount and importance of the matter involved, the time spent, the prices usually charged for similar services by other attorneys in the same neighborhood, the amount of money or the value of the property affected by controversy, and the results secured.” See Mulhern v. Roach, 398 Mass. 18, 24 (1986), citing Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933).
In another case, the Appeals Court affirmed an attorney’s lien as fair and reasonable. In this case, the trial judge considered the relevant factors. These factors included: the time spent; the skill and experience of counsel; the complexity of the case; the calibre [sic] of the services; and the success achieved. See Phelps Steel, Inc. v. Von Deak, 24 Mass. App. Ct. 592, 595 (1987).
If you are looking for a highly qualified divorce and family law attorney, or have questions about attorney liens, contact us. You may schedule a free consultation online with our experienced attorneys at Turco Legal. If you’d prefer to schedule a consultation by phone, call (866) 995-6663.