Friday, February 6, 2009

Charging Lien

The West Virginia Supreme Court of Appeals reversed and remanded a determination to disallow the assertion of a charging lien by an attorney who had been discharged in a personal injury case. The course of representation had a convoluted history with several counsel terminated after the original lawyer, who had asserted the claim at issue:

The rationale for permitting an attorney to bring an attorney's charging lien is simple: “Parties to a suit accepting the services of an attorney, with knowledge thereof, as the services are performed from time to time, and in the absence of any agreement for gratuitous service and circumstances from which gratuitous service would be implied in law, are liable therefor.” Syl. pt. 1, Cecil v. Clark, 69 W. Va. 641, 72 S.E. 737 (1911). See also Syl. pt. 2, in part, Security Nat'l Bank & Trust Co. v. Willim, 155 W. Va. 1, 180 S.E.2d 46 (1971) (“The general rule is that the creation of a relationship of attorney and client by contract, expressed or implied, is essential to the right of an attorney to recover compensation from one for whose benefit the attorney claims to have rendered legal services.”). As such, “[a]n attorney's charging lien for his fee is confined to the judgment or fund recovered by him as attorney[.]” Syl. pt. 2, in part, Hazeltine v. Keenan, 54 W. Va. 600, 46 S.E. 609 (1904). Correspondingly, “[a]n attorney has no lien upon a fund which he is not instrumental in creating, and which never came to his hands.” Syl. pt. 4, Schmertz & Co. v. Hammond, 51 W. Va. 408, 41 S.E. 184 (1902).

      From these authorities, it is clear that GBW [the law firm] had the right to file an attorney's charging lien against Mr. Trickett's settlement proceeds to recover its unpaid attorney's fees that were incurred before Mr. Trickett discharged Mr. Wigal as his counsel. Given the lengthy and convoluted procedural history of the underlying lawsuits, it is apparent that Mr. Wigal's representation of Mr. Trickett contributed in some measure to the ultimate settlement of those actions, which settlement the circuit court ultimately accepted in its February 18, 2004, enforcement and dismissal order. The question remains, however, as to whether GBW was permitted to bring said charging lien in the underlying litigation, as it attempted to do, or whether GBW was required to file its lien in a separate proceeding, as found by the circuit court.

(Mike Frisch)

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