Wednesday, December 9, 2020

Lien Gives Way

The New Jersey Appellate Division has held that an attorney's lien acknowledged when the law firm withdrew from representation of a divorce client gave way to the interests of the opposing client

To be sure, as [law firm] Donahue emphasizes, the judge recognized [former client] Tobia's theoretical entitlement to half the marital assets in making his equitable distribution findings, but, because of Tobia's failure to comply with his support obligations and other directives, the judge concluded Lisa was entitled to all assets, including the fund in question.

The court took away $20,000 that the trial court had awarded to the firm.

we must also reverse that part of the order that allowed Donahue to receive $20,000 from the fund. The judge provided a brief explanation for that ruling  that seems untethered to his analysis of the equities and linked only to a feeling of sympathy for Tobia's former attorney that should have played no role in his considerations.

As Willy Wonka might say, you get nothing!

The law firm's former client had behaved badly

Even assuming Tobia obtained an actual award or judgment – not just a momentary acknowledgement of his potential right to half a marital asset ultimately awarded to Lisa – Donahue's assertion of a lien gave it no greater rights than Lisa, only an opportunity to argue that it should have a priority over Lisa to the fund. The judge correctly viewed the undertaking in this way and reached the appropriate conclusion that Lisa clearly possessed a higher priority than her adversary or his attorney, much like the plaintiff in B.B. v. Mell, __ N.J. Super. __, __ (App. Div.Nov. 23, 2020) (slip op. at 7-10). As the victim of Tobia's contumacious conduct, coupled with his continuing unwillingness to voluntarily pay his support obligations despite his significant earning capacity, Lisa stands on much higher equitable ground than Tobia's former attorneys. Indeed, to rule otherwise would inequitably shift a portion of Tobia's fees to Lisa's side of the ledger – a ruling wholly inconsistent with the disposition of this matrimonial action.

(Mike Frisch)

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