Legal Malpractice

Charging and Retaining Liens in New York Legal Malpractice

By (Andrew Lavoott Bluestone)

A common law retaining lien, known also as a "general possessory lien" entitles the outgoing attorney to "retain all papers, securities, or money belonging to the client" that came into the attorney's possession in the course of representation, as security for payment of attorney's fees" 

A retaining lien arises from Judiciary Law  475  and is a statutory lien upon service of a notice of lien, which attaches to the case papers, and allows the attorney to retain as in the "general possessory" lien.   It is enforceable only by retention of the items themselves and is lost if the file or documents are no longer in the attorney's possession.

A charging line similarly arises from Judiciary Law § 475, and allows for a "statutory lien upon service of a notice of lien, which attaches to any recovery and thus secures the attorney's right to compensation." 

All of these liens are extant so that the monies or securities held by the attorney are kept available for an attorney fee hearing.  That hearing will be held to determine the amount of fees, based upon a quantum meruit determination.

Full post as published by New York Attorney Malpractice Blog on October 30, 2008 (boomark / email).