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FW: State Bar Rule 1.15 Safekeeping Funds and Property
I will definitely not give clients a choice. All my versions of retainer letters now have to be rewritten.
If you rewrite yours, be sure that the section related to this, besides fully disclosing the issue, has a place for their signature. Initials is not enough as I read it.
Steve Lever
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I really dont want to give clients a choice. Id rather have them initial that the monies are going into the operating account and are flat fee in nature. I have no problem telling them what the alternative is. I am thinking that I will tell them if I deposit into my trust account, then I will bill at my hourly rate and must be paid before filing.
Rule seems to be in contradiction to bankruptcy courts not wanting attorneys to unbundle.
Just thinking out loud
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On Nov 5, 2018, at 8:35 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] wrote:
Never mind. I see it now.
I intend to revise the retainer letter for clients to be aware of it, waive it and sign it.
Steve Lever
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Go further down. It is after 1.14
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On Nov 5, 2018, at 6:04 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] wrote:
Still dont see 1.15. It jumps from 1.1 to 1.2 and fees are in 1.5 and theres nothing about the trust fund.
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Rule 1.15 exits. The State Bar sent out its monthly magazine email to all members on Friday with a link to the new rules. Desiree's post also had a link to it. It's not between 1.1 and 1.2 as its 1.15 thirteen subsections after 1.2.
The attorney lien in the bk is perfected when executed in compliance with Rule 3-300. It does not require recording. The following is an article from the July 2013 State Bar magazine:
Ethical Enforcement of Attorneys Liens Avoiding Traps for the Unwary
By Suzanne Burke Spencer
Spencer
Noting the mischief and leverage over a clients funds that even a false notice of attorneys lien gives an attorney, the Court of Appeal in Carroll v. Interstate Brands Corp., 99 Cal. App. 4th 1168, 1178 (2002) called on the legislature to adopt statutory procedures for the expeditious resolution of attorneys liens. Ten years later, no such statutory procedures have been provided. Much of the mischief feared by the Carroll court, however, can be avoided if an attorney abides by the ethical rules and duties already in place. Those rules and duties are the subject of this article.
An attorneys lien is contractual in nature
An attorneys lien (also known as a charging lien) is a lien that secures an attorneys compensation against the funds or judgment recovered by the attorney for the client. Fletcher v. Davis, 33 Cal. 4th 61, 66 (2004).
An attorneys lien is not automatically created upon the lawyerr its creation. Carroll, 99 Cal. App. 4th at 1172. Once created, an attorneys lien grants the attorney a security interest in the proceeds of the litigation in which he represented the client. Fletcher, 33 Cal. 4th at 67.
With hourly fee agreements, a valid attorneys lien is created only if the attorney complies with California Rules of Professional Conduct, Rule 3-300. Id. at 69. Rule 3-300 requires the attorney to explain the transaction fully, to offer fair and reasonable terms, to provide a copy of the agreement, to give the client an opportunity to seek independent legal advice [and to advise the client in writing that he may do so], and to secure the clients written consent. Id. at 71; Rule 3-300.
Compliance with Rule 3-300, however, is not required in a contingent fee arrangement, because the lien is an equitable corollary to, and thus inherent in, a contingency fee contract. Cal. Form. Opn. 2006-170 (emphasis in original). In a contingent fee arrangement, a written contingent fee agreement in compliance with Business and Professions Code lien. A lien may also be implied where the retainer agreement requires the attorney to look to the proceeds of the litigation for payment. See Cetenko v. United California Bank, 30 Cal. 3d 528, 531 (1982). Though not required to perfect the lien, an attorney may also file a notice of lien in the case against which he asserts the lien. Carroll, 99 Cal. App. 4th at 1172.
The right to enforce does not exist until the contingency occurs
An attorneys lien is created and takes effect when the fee agreement giving rise to the lien is executed. Cetenko, 30 Cal. 3d at 534. Such a lien has priority over other liens created after the attorney-client fee agreement was entered into. Carroll, 99 Cal. App. 4th at 1175. An attorneyeding. The court in which the case is pending and in which a notice of lien may be filed lacks jurisdiction to determine the validity or amount of any attorneys lien. Carroll, 99 Cal. App. 4th at 1176-77.
There is a difference between the right to claim an attorneys lien and the right to payment of a fee. The right to claim an attorneys lien depends only upon whether the lien was validly created in the contract between the attorney and client. By contrast, the right to be paid a fee depends on the occurrence of the contingency defined in the agreement giving rise to the right to be paid a fee (e.g., judgment or settlement of the case). Thus, the creation of a lien does not itself give the attorney the right to claim payment, but rather gives the attorney only the right to be paid from a specific source of funds should a fee otherwise be earned. Until a fee is earned, no right to enforce the claim of lien exists. Fracasse v. Brent, 6 Cal. 3d 784, 792 (1972). If the contingency never occurs, no fee is earned, and the lien is of no value. Id.
Non-contracting attorneys may not enforce
As a creature of contract, to enforce a lien a direct contractual relationship between the attorney and the client is essential. When the client enters into a retainer agreement with one particular attorney, a lien in favor of another attorney, albeit associated, is neither express nor implied and does not exist. Carroll, 99 Cal. App. 4th at 1172. Attempts by discharged employees, associates, contract attorneys or co-counsel to enforce a lien against a firm client have repeatedly been rejected by the courts. See Trimble v. Steinfeldt, 178 Cal. App. 3d 646, 651-52 (1986) (former employee); Kenneally v. Bosa Cal. LLC, No. 09-CV-2039, 2011 WL 2118255 (S.D. Cal. May 26, 2011) (co-counsel);Huskinson & Brown v. Wolf, 32 Cal. 4th 453, 465 (2004) (referring attorney with invalid fee splitting agreement). In such situations, the attorney must look to the contracting attorney or firm, not the client, for payment. See Beydoun v. Strong, 166 Cal. App. 4th 1398 (2008).
Similarly, a former partner who leaves a firm and brings a client with her may not directly assert a lien for services performed while the client was represented by the former firm. Rather, only the former firm can enforce that lien. The departing partners right to compensation is governed by the partnership or other compensation agreements between the departing partner and the former firm. See City of Morgan Hill v. Brown, 71Cal. App. 4th 1114 (1999).
Duties to clients regarding enforcement
Even after an attorney is discharged by a client, with or without cause, the discharged attorney continue[s] to owe [the client] a fiduciary duty of utmost good faith and fair dealing with respect to, at least, the subject matter of [the attorneys] prior representation of [the client], including [the attorneys] express lien for his attorneyv. Dept 1997). If an attorney attempts to enforce a lien for his attorneys fees in violation of the legal or ethical principles governing attorneys liens, the lawyer is in breach of his fiduciary duties to his former client.
Rule 4-100(B)(4) requires an attorney to promptly pay, at the clientnt is entitled to receive. An attorneys duties under that rule are not extinguished by termination of the attorney-client relationship. Cal. Form. Opn. 2009-177.
Thus, where an attorney is asserting lien rights against less than all of the funds recovered, the attorney has a duty to promptly take reasonable steps to pay or deliver to the client the portion of the proceeds that are not in dispute, promptly make a reasonable determination of the amount of fees claimed under the lien, and promptly offer reasonable suggestions for disbursement of any remaining funds belonging to the client. Cal. Form. Opn. 2009-177; In re Feldsott, 3 Cal. State Bar Ct. Rptr. 754 (Rev. Dept. 1997); Fletcher v. Davis, 33 Cal. 4th 61, 69 (2004); Friedman v. State Bar, 50 Cal. 3d 235, 240-41 (1990).
Such duty does not require the attorney to abandon valid lien rights in order to ensure disbursement, provided the attorney acts reasonably to assert those rights while offering reasonable alternatives for disbursement of the undisputed amount. In re Feldsott, 3 Cal. State Bar Ct. Rptr. 754 (Rev. Dept. 1997).
In the context of hourly fees secured by an attorneys lien, the amount of the attorneys lien would generally be the balance due on the clients account. Provided the lien amount is not asserted in excess of that amount, the attorney has complied with his ethical obligations. Cf. Grossman v. State Bar, 34 Cal. 3d 73, 79-80 (1983) (attorney properly disciplined where he retained client funds in excess of the fixed fee provided in the contract).
In the context of contingent fee representation, however, calculation of the lien amount is somewhat more complicated. A contingent fee attorney discharged (with or without cause) before the representation is concluded is entitled to receive no more than the reasonable value of the attorneys services, quantum meruit, up to the time of discharge. Fracasse, 6 Cal. 3d at 792; Weiss v. Marcus, 51 Cal. App. 3d 590, 598 (1975). Determination of the quantum meruit value of an attorneys services depends upon many factors, including the results achieved, time spent on the matter, the risk taken, and reasons for discharge. Where an attorney is discharged before the matter is complete, the attorney is generally not entitled to the full amount of compensation called for in the contract formed and could result in double payment of fees first to the discharged and then to a new attorney. Spires v. American Bus Lines, 158 Cal. App. 3d 211, 216 (1984). Asserting a lien in the full contract amount would generally violate the attorneys ethical and fiduciary duties to her client. Instead, the attorney is entitled to receive no more than the reasonable value of his services, with an upper limit of the contract contingent fee pro rated to reflect the partial performance of the contract. Cazares v. Saenz, 208 Cal. App. 3d 279, 289 (1989). For example, if the discharged attorney performed half of the contract before being discharged, the upper limit of the attorneys compensation would be one half of the full contract price.
The discharged contingent fee attorney also shares the total contingent fee earned with successor counsel, as there may only be a single contingent fee paid by the client. If that contingent fee is insufficient to cover the full quantum meruit claims of discharged and existing counsel, the attorneys must allocate the fee between themselves based on a formula which pro rates the contingent fee among all discharged and existing attorneys in proportion Spires, 158 Cal. App. 3d at 216; see also In re Van Sickle, No. 99-O-12923, 2006 WL 2465633 (Rev. Dept 2006).
Where the attorney and client cannot agree as to the fees owed, and the client requests release of funds in which the attorney claims an interest, take appropriate, substantive steps to resolve the dispute in order to disburse the funds. In re Kroff, 3 Cal. State Bar Ct. Rptr. 838, 853-54 (Rev. Dept 1998). The attorney has an affirmative obligation to seek reasonable methods for delivering to the client the undisputed portion. This may include offering to place the disputed funds into a blocked account requiring signatures from the attorney and client, authorizing the disputed funds to be placed in successor counsels trust account, or promptly commencing legal action or arbitration to resolve the dispute. In re Feldsott, 3 Cal. State Bar Ct. Rptr. 754, 757 (Rev. Dept 1997); In re Kroft, 3 Cal. State Bar Ct. Rptr. at 853-54; Cal. Form. Opn. 2009-177; see also Los Angeles Bar Ass'n Form. Opn. No. 438 (1985).
Where a fee dispute arises between lawyer and client, the attorney-client privilege is waived, but only to the extent necessary for the attorney to defend or prosecute his claims. Evid. Code 958; McDermott, Will & Emery v. Superior Court, 83 Cal. App. 4th 378, 383-84 (2000).
Duties between counsel regarding enforcement
Successor counsel in the possession of settlement or other proceeds against which a predecessor attorney has asserted a lien has a fiduciary obligation to the attorney lienholder with respect to the funds. See Johnstone v. State Bar, 64 Cal. 2d 153, 155-56 (1966); In re Respondent P, 2 Cal. State Bar Ct. Rptr. 622, 632 (Rev. Dept 1993); Cal. Form. Opn. 2008-175. That duty includes the duty to inform predecessor counsel of the fact and amount of settlement. In re Riley, 3 Cal. State Bar Ct. Rptr. 91, 111-15 (Rev. Dept 1994); Cal. Form. Opn. 2008-175. Moreover, a third party (e.g., the defendant or the defendants insurer) with notice of the plaintiffs former counsels attorneys lien, may be civilly liable to the lienholder for paying out the funds directly to successor counsel and the plaintiff. See Levin v. Gulf Ins. Group, 69 Cal. App. 4th 1282, 1287-88 (1999).
Where a dispute arises only between successor and predecessor counsel as to the pro-rata allocation of the fee earned, where the client has not disputed the fee earned, the attorney may reveal to prior counsel the fact and amount of settlement, but that attorney must continue to otherwise maintain her duty of confidentiality to her client when attempting to reach an accord with prior counsel. Cal. Form. Opn. 2008-175. In litigation between counsel, the presiding officer will be in a position to limit disclosure of confidential information to the greatest extent possible Id.at 6.
Conclusion
In asserting an attorneys lien, following well-established ethical and fiduciary duties should eliminate or at least reduce any harm to the client. By reasonably and promptly quantifying liens, consenting to disbursement of undisputed funds and reasonably negotiating with successor counsel the allocation between attorneys of any contingent fee earned, attorneys should be able to resolve most lien disputes without court involvement. Such a result should be compelled not only by ethical considerations, but by practical considerations as well. Drawn out and costly legal battles over entitlement to fees and validity of liens tax not only the lawyers and clients involved, but the judicial system as a whole.
Mark T. JesseeLaw Offices of Mark T. Jessee50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA 91360"We are A Debt Relief Agency"(805) 497-5868(805) 497-5864 Facsimile
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In a message dated 11/5/2018 5:22:20 PM Pacific Standard Time, cdcbaa@yahoogroups.com writes:
I still dont see that it exists, as Ive stated in response to Desiree.
Even if it exists in the final form, I think the client can opt out, and I just will not take clients who do not agree to an opt out.
You bring another thorny issue and how do you perfect a lien as against the Trustee?
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