Presentation on theme: "A TTORNEY ’ S L IENS Judge Mary Mulhern. S TATUTORY B ASIS FOR A TTORNEY ’ S L IEN 770 ILCS 5/1: Attorneys at law shall have a lien upon all claims, demands."— Presentation transcript:
A TTORNEY ’ S L IENS Judge Mary Mulhern
S TATUTORY B ASIS FOR A TTORNEY ’ S L IEN 770 ILCS 5/1: Attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such suits, claims, demands or causes of action, plus costs and expenses. In the case of a claim, demand, or cause of action with respect to which the total amount of all liens under the Health Care Services Lien Act [770 ILCS 23/1 et seq.] meets or exceeds 40% of the sum paid or due the injured person, the total amount of all liens under this Act shall not exceed 30% of the sum paid or due the injured person. All attorneys shall share proportionate amounts within this statutory limitation. If an appeal is taken by any party to a suit based on the claim or cause of action, however, the attorney’s lien shall not be affected or limited by the provisions of this Act.
770 ILCS 5/1 C ONTINUED To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action. Such lien shall attach to any verdict, judgment or order entered and to any money or property which may be recovered on account of such suits, claims, demands or causes of action, from and after the time of services of the notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than 5 days notice to the adverse party, adjudicate the rights of the parties and enforce the lien. This is also referred to as a “charging lien.”
C OMMON L AW R ETAINING L IEN “A retaining lien exists on all papers or documents of the client placed in the attorney’s hands in his professional character, or in the court of his professional employment.” Sanders v. Seelye, 128 Ill. 631, 637-38 (1889). This is a possessory lien, as opposed to the statutory lien, which is a charging lien. The retaining lien is a passive lien, i.e., cannot be enforced through judicial process. The enforcement mechanism is maintaining possession of the client’s file, or “holding the client’s property hostage” until fees and expenses are paid. Johnson v. Cherry, 422 F.2d 540, 555 (7th Cir. 2005).
C OMMON LAW RETAINING LIEN, CTD. Twin Sewer & Water, Inc. v. Midwest Bank and Trust Co., 30 Ill.App.3d 662, 667 (1st Dist. 1999); In Re Liquidiation of Mile Square Health Plan, 218 Ill.App.3d 674, 677 (1st Dist. 1991). Illinois RPC 1.8(i)(1). Federal court guidelines on maintaining possession; See Lucky- Goldstar Int’l (America), Inc., v. Int’l Manuf. Sales Co., Inc., 636 F.Supp. 1059 )N.D.Ill. 1986). Possible Waiver of Retaining Lien Ethical Considerations
T HE A BILITY OF C LIENT TO D ISCHARGE A TTORNEY This is undisputed, even where there is a contingency fee contract. When the client discharges the attorney, the contingency contract no longer exists, but the attorney is entitled to payment for services rendered prior to the discharge on a quantum meruit basis, Thompson v. Hiter, 356 Ill.App.3d 574, 580-81 (1st Dist. 2005, but may also be entitled to the contract fee under certain circumstances.
T HE A BILITY OF C LIENT TO D ISCHARGE A TTORNEY, CTD. DeLapaz v. Selectbuild Construction, Inc., et al., 394 Ill.App.3d 969 (1st Dist. 2009). Court has discretion to award the contract fee to the discharged attorney.
T HE A BILITY OF C LIENT TO D ISCHARGE A TTORNEY, CTD. Id. at 973, quoting Will v. Northwestern University, 378 Ill.App.3d 280, 304 (1st Dist. 2007); Serpico v. Spinelli 2013 IL App (1 st ) 120898-U. Factors to be considered in quantum meruit award: I. Time and labor required; II. Attorney’s skill and standing in the legal community; III. Nature of the case; IV. Novelty and difficulty of the subject matter; V. Attorney’s degree of responsibility in managing the case; VI. Usual and customary charge in the legal community for that type of work; and VII. Benefits resulting to the client.