Legal Malpractice

Charging and Retaining Liens in Legal Malpractice

By (Andrew Lavoott Bluestone)

A common law retaining 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. Arising from Judiciary Law 475, 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 and attaches to any recovery and thus secures the attorney's right to compensation. A hearing will be held to determine fees, based upon Quantum meruit.

Quantum meruit is the fair and reasonable value of the services rendered, which may be more or less than the amount provided in the contract or retainer agreement and is determined by "taking into consideration the character of the services, the nature and importance of the litigation, the degree of responsibility imposed or incurred, the amount or value involved, the length of time spent, the ability skill and experience required and exercised, the character, qualifications and standing of the attorney and the results achieved. The recovery is not limited to the amount billed, the original terms of the retainer agreement, and may be less or more than the amount which might have been recovered under a contingency fee or other measuring tools of fees.

Full post as published by New York Attorney Malpractice Blog on February 19, 2010 (boomark / email).