Case Conclusion Date: December 15, 2004
Practice Area: Family
Outcome: (Not available)
Description: An attorney who has been discharged without cause, and who has satisfied the conditions precedent to earning a fee, is entitled to recover the amount of his or her compensation in three ways: by the assertion of a retaining lien, by the assertion of a charging lien, or by commencing a plenary action. A retaining lien, which attaches automatically upon the commencement of the representation, is a security interest in any documents or other items of the client that are in the possession of the attorney and is extinguished when the possession terminates other than by court order. A charging lien is a security interest in the favorable result of the litigation. It attaches automatically upon the interposition of the claim, whether in a complaint or a responsive pleading. N.Y. Jud. Law Â§ 475. Where either lien is asserted, the attorney is entitled to a prompt hearing to fix the amount of the lien. In a New York domestic relations action in which a discharged attorney holds a retaining lien, if, at the conclusion of a hearing regarding cause for discharge, it is found that there was cause for the discharge, the matter is resolved, because both the entitlement of the plaintiff's former attorneys to recover their fee and their retaining lien are defeated and the file must be delivered immediately to incoming counsel. If, on the other hand, the issue of cause for the discharge is resolved in favor of the client's former attorneys, the court must address the issue of exigent circumstances, such as indigency, which, if found, would justify directing the immediate release of the file. In the absence of exigent circumstances, the court must, before requiring the release of the file, either determine the amount of the fee to which the former attorney is entitled and direct its payment or protect the fee claim by identifying and sequestering property sufficient to satisfy it. Once adequate security for the fee claim, other than the file, is in place, the purpose of the lien is satisfied and the fee can be determined otherwise.