Free Consultation:

Attorney Liens Part 3: What are Retaining Liens and Charging Liens?

Retaining-Lien

Attorney liens are the ultimate sign of a broken relationship between attorney and client. Part 1 discussed what an attorney lien is and Part 2 highlighted the requirements and limitations of an attorney lien. This final part will discuss the two most favored types of attorney liens: retaining liens and charging liens.

Retaining Liens

In Florida, the case file your attorney builds as he works on your case – containing your attorney’s notes, investigation reports, expert opinion summaries, and other potential evidence vital to your case – is considered to be your attorney’s property. Though you can normally access it and get copies of it (often at your own expense), you generally aren’t entitled to take your file with you when you leave the firm.

If your first attorney withdraws from your case, your new attorney will normally request a copy of the first attorney’s case file since, without it, she would have to complete all the work already accomplished by the first attorney, causing expensive delays that could potentially damage your case. While your original attorney still has an ethical duty to not damage your case, he has a right to be paid according to the terms of the contract as well.

If you and your original attorney cannot work out an arrangement that ensures that he will be paid what you contracted for, he may seek to retain your file as surety for the debt. In essence, a retaining lien is a way for your former attorney to hold your file hostage until he receives payment or an assurance that he will be paid out of the settlement or award received in your case.

A retaining lien is subject to the limitations discussed in Part 2, and is vastly limited in contingency fee arrangements. If your contingency fee contract dictates that your attorney must pay for the costs and expenses of the litigation unless and until your case returns with a settlement or favorable verdict, he cannot retain your file, since he would have no right to payment until the contingency (the lawsuit’s success) occurred. If, however, your contract dictates that you are responsible for part of the litigation expenses regardless of how the case ends, your former attorney may be able to retain your file until your portion of the expenses is paid.

You should also be aware that your attorney may be able to retain funds he is holding for you – though there are strict limitations on what sort of funds he may retain. For example, attorneys may rarely retain any portion of funds held for a specific purpose (such as to guarantee a loan), even if the funds exceed the amount needed for the designated purpose. Again, review your contract carefully to see whether it contains language that allows him to retain your funds to pay his fees and costs, and under what circumstances.

If your former attorney has filed a retaining lien on your case file or funds, your new attorney should be able to advise you on how best to proceed. If your case might be damaged by the retaining lien or if the attorney’s claimed fees and costs are unreasonable, you may be able to defeat the lien.

Charging Liens

Another common type of attorney lien is known as a charging lien, which allows your attorney to claim a portion of the future settlement or judgment in your case.

In order for an attorney to succeed in a lien application, he must be able to demonstrate that his work contributed substantially to your case – so if you feel that his representation and/or subsequent withdrawal actually harmed your case, you may be able to challenge his lien and his right to receive any payment.

For both types of liens, your former attorney’s claim for payment is limited by law to the reasonable value of his services and also by the contract you signed. For example, if your attorney anticipated receiving 33% of your award and you settled the case for $600,000, he cannot claim $200,000 when he only put in ten hours of work before withdrawing. So, too, if your contract limited his fee to $5000, he likely cannot later claim more than that, even if the actual hours he spent on your case at a reasonable billing rate would have exceeded that amount.

For more information on attorney liens, The Florida Bar has put together a Primer on Motions to Withdraw, and the Ethics Committee has provided an Informational Packet on Attorney Liens.

If your former attorney has threatened to file or has actually filed a lien against your judgment or if he is retaining needed information that is essential to the success of your case, Trials and Errors can help. We have extensive experience dealing with tort litigation and the different liens that may become involved.. Contact us today for a consultation.

Testimonials

"From the moment I first spoke with Alan Wagner I felt like someone had my back. That alone made me feel so much better immediately. From there he stuck by me, answered my questions, gave me excellent advice and got my case resolved. He is amazing!!! He is the first one I will turn to if I have any legal issues and the first one I will recommend. I can't thank you enough."
- Dave
Posted on August 11, 2017
"After receiving some horrific dental work, I turned to Jason Whittemore for assistance. He listened to my case, made suggestions and then took action! He was professional, attentive and knowledgeable. In addition, because he was able to settle the case without going to court, he didn’t charge me a penny! You can’t ask for better representation. Thank you Jason and team for all you have done for me."
- Lucie
Posted on Avvo on March 15, 2017
"Michael McLaughlin's name was provided to me from a close friend, so I realized immediately that this will be a great choice for my case. Everyone knows word of mouth from a close friend or family member for any type of service is solid. This was evident when I first met Michael 4 days after my accident when he arrived at my private residence. I reached out to him via phone call when I got home from the hospital and he wanted to come to my house the next day to get started - no time was wasted. He was very empathetic, down to earth, and honest with me and my wife concerning what to expect in the next 6 months with my case. He was spot on relating to expectations and what he could make possible in my favor to ease my stress as the months passed. He was devoted and hardworking along with his legal assistant Sharon keeping me aware of the progress of my case and relentless in reducing my medical bills and battling with the insurance companies. Michael also unexpectedly and drastically reduce his fees in order to provide us with additional funds we honestly never expected to obtain. He received an Excellent Rating because he earned it - Thanks Michael for what you accomplished for me and my family. High Recommended! Devoted - Hardworking - Relentless!"
- John
Posted on Avvo on February 23, 2017
"I hired Michael McLaughlin after being involved in a vehicle accident with injury. Michael was very easy to talk with and did not use legal verbiage but explained it very clearly and supported his concerns with clear documentation for my review. The entire time Michael kept me informed of the process and procedures and how each step was important my input and understanding would instrumental to the outcome of my case. His professionalism did not intimate but actually made me comfortable and confident i had hired the right person to protect my interest in this case were not minimized."
- Douglas
Posted on January 27, 2017
"They Fought the Big Guys and Won. After years of litigation against one of the largest corporations in the world, Alan Wagner and his team will be delivering a huge check from the defendants. Thank You. It pays to have a Board Certified Trial Lawyer."
- W.F. Casey
Posted on November 22, 2016
"Mr. Kevin McLaughlin took the time to reply to my questions and concerns relating to a recent incident. I also like that he and the other attorneys in his firm have much experience in specific areas of the law."
- Rick
Posted on October 17, 2016
"Alan Wagner took our case when numerous other lawyers would not. Though he knew that his return on investment would be low, he was willing to accept the case on principle. My wife and I didn't even have time to stop celebrating the fact that someone was willing to take the case before he actually had it settled. All along we were concerned about how much of our money we would ever be able to get back and he got every dime returned to us, with the payment plan in place in a matter of days from accepting the case. I can't say enough about his professionalism, demeanor, and knowledge."
- Chris
Posted on Avvo, July 23, 2015
"I could go on and on about Mr. Alan Wagner. I contacted him via his website and 30 minutes later I was on the phone with him himself. I explained my situation and while we were still on the phone he had sent a runner to the courthouse to get information that I would not have known how to get. He walked me through the entire process and, what had taken years with another attorney, took care of everything in about 90 days."
- Chris
Posted on Avvo, January 3, 2012
"Michael McLaughlin came highly recommended to me by another member of the legal profession. I was told that he and his firm were professional, highly esteemed and ethical as well which was very important to me. Michael was always available to me whether by phone or email. If I had to leave a message, I always heard back from him very quickly. When I thanked him for his time, he always reminded me that he was working for me. Michael kept me fully informed throughout the entire process and was thoughtful and kind. He was always honest and gave me realistic expectations."
- Tami
Posted on Avvo, November 17, 2015
"Mr. Jason Whittemore is a sharp, very responsive, attentive, professional. He always politely spoke the facts. He kept me informed at all times. The end result was that we won. He is the sole reason for winning this unusual case. I highly recommend Mr. Whittemore and if I need an attorney in the future he is first on my list."
- Aimee
Posted on Avvo, March 1, 2016
"Kevin McLaughlin is one of the most honest and hard working people that my husband and I have had the pleasure to deal with. We would both highly recommend him and his whole firm to anyone seeking legal assistance."
- Laura
Posted on Avvo, September 22, 2015
"Alan Wagner provided my sisters and I excellent advice that included a referral to an excellent Tampa estate attorney who was able to clean up a mess created by a Sarasota estate attorney we had hired and another our mother had hired thinking she was preparing her estate carefully. He was always very generous of his time as a sage advisor even though he had no financial gain from our case."
- Karen Giroux
Best Lawyers SuperLawyers Martindale Florida Bar NBTA Florida Justice American College of Trial Lawyers

Florida Legal Malpractice Blogs

blog-image

What to do if your Attorney Didn’t Show up to Court

When you hire an attorney, you expect the best representation possible. Your […]

Learn More
blog-image

What is Commingling?

Commingling is the act of attorneys mixing their own funds with clients’ […]

Learn More
blog-image

Lose Your Case Because Your Lawyer Didn’t Properly Investigate? How to Begin Another Case

Lose Your Case Because Your Lawyer Didn’t Properly Investigate? When you hire […]

Learn More
blog-image

How a Lawyer Can Help in a Deed Preparation & What Happens If Something Goes Wrong

The decision to sell your house or land is a big one; […]

Learn More
blog-image

Case Wasn’t Filed in Time? Why You Might Have a Legal Malpractice Case

Failure to File Your Case on Time Could Gain You a Legal […]

Learn More
blog-image

Lawyer Jurisdictions: Did Your Lawyer Practice in a State They Are Not Licensed In?

Malpractice in the legal industry occurs more often than people realize, and […]

Learn More
blog-image

Attorney Failed to Appeal My Case in Time: Do I Have a Case?

When you’re involved in the legal system, time is always important. Deadlines […]

Learn More
blog-image

Legal Malpractice: Financial Misconduct and Misappropriated Funds

The social contract dictates everyone should be able to trust their lawyers […]

Learn More
blog-image

Legal Malpractice: Inadequate Knowledge of Applicable Law

You trust your lawyer to protect your rights and defend your interests. […]

Learn More
blog-image

Four Common Filing Errors That Can Ruin Your Legal Case

Losing a case or having it rejected by the court because of […]

Learn More