This might help some attorneys out there. In probate, the attorney representing the fiduciary usually gets paid from the estate (or trust). However, if you represented a beneficiary or for whatever reason are not protected by the probate rules and statutes, here is a basic sample Motion to Establish Attorney's Lien:
LAW FIRM, counsel for CLIENT, hereby moves this Court, pursuant to Millsap v. Sparks, 21 Ariz. 317, 188 P. 135 (Ariz. 1920) and 23 Williston on Contracts § 62:11 (4th ed.), to establish a charging lien for services rendered in this cause of action. Said charging lien should be placed against all assets awarded to CLIENT in this litigation, to secure the payment of LAW FIRM'S unpaid legal fees and costs incurred on behalf of CLIENT. This Motion is based on the following Memorandum of Points and Authorities.
Memorandum
Applicable Law.
An attorney has a special or charging lien for services rendered in a particular cause of action or proceeding to secure compensation for obtaining a judgment, award or decree on the client’s behalf. The special or charging lien is not dependent on possession, as in the case of the general or retaining lien. It is based on natural equity—the client should not be allowed to appropriate the whole of the judgment without paying for the services of the attorney who obtained it. Thus, the charging lien gives the attorney an equitable ownership interest in the client’s cause of action, and the client’s property right in his or her own cause of action is only that which remains after the attorney is paid.
23 Williston on Contracts § 62:11 (citations omitted).
Discussion.
LAW FIRM provided legal services and incurred costs on behalf of CLIENT pursuant to a written fee agreement. The total fees and costs are in excess of $______. CLIENT has paid $__________. The unpaid balance of legal fees and costs is currently $___________.
LAW FIRM is entitled to a charging lien on assets to be awarded to CLIENT in the within action to secure payment of its unpaid fees and costs.
Conclusion.
For all of the above-stated reasons, LAW FIRM requests that the court order that a charging lien exists on the assets to be awarded to CLIENT to secure the payment of LAW FIRM'S unpaid fees and costs.
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If you have a question about this or any other information on this blog, please call Paul Deloughery or another attorney. You can reach Paul at 602-443-4888.
Thursday, February 12, 2009
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1 comments:
Since I published the original post about attorney liens, I realized that there is a simpler way to do this. Just file a "Notice of Lien" with the court, and send a copy to the persons holding assets that you want the lien to apply to. In the Notice, say that you respectfully request that no distributions be made (at least to your client) until a hearing is held on the issue of payment of your legal fees/costs. The lien is created by operation of law in favor of an attorney who has performed services. You need to provide notice for it to be effective, and that is where filing the Notice and serving a copy on holders of assets comes in. Search in Westlaw and you will find lost of secondary sources discussing this in detail.
Feel free to call me at 602-443-4888 if you have a question. Paul
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