There are four requirements for a
valid charging lien. To impose such a charging lien, the attorney must show:
(1) an express or implied
contract between attorney and client;
(2) an express or implied
understanding for payment of attorney's fees out of the recovery;
(3) either an avoidance of
payment or a dispute as to the amount of fees; and
(4) timely notice. Daniel Mones, P.A. v. Smith,
486 So. 2d 559, 561 (Fla. 1986).
Notice and Timing
of Charging Lien
There are no requirements for
perfecting a charging lien beyond timely notice. Sinclair, Louis, Siegel,
Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1385
(Fla. 1983).
In order to give timely notice of
a charging lien an attorney should either file a notice of lien or otherwise
pursue the lien in the original action. Daniel Mones, P.A. v. Smith, 486
So. 2d 559, 561 (Fla. 1986).
Notice of the charging lien must
be filed or the lien pursued in the action before entry of a final judgment or
dismissal of the case. Naftzger v. Elam, 2010 Fla. App. LEXIS 10445
(Fla. 2d DCA 2010).
Charging liens filed during the
pendency of a proceeding may be filed before or after an attorney's withdrawal
in that proceeding. Rudd v. Rudd, 960 So. 2d 885, 888 (Fla. 4th DCA
2007).
If notice of a charging lien is
not given before entry of the final judgment or an order dismissing the case,
the trial court loses jurisdiction to enforce a charging lien in the original
action. Naftzger v. Elam, 2010 Fla. App. LEXIS 10445 (Fla. 2d DCA 2010).
An attorney's charging lien is
untimely and may not be established in proceedings after final judgment has
been entered. Weiland v. Weiland, 814 So. 2d 1252, 1253 (Fla. 2d DCA
2002) citing Milio v. Leinoff & Silvers, P.A., 668 So. 2d 1108 (Fla.
3d DCA 1996) holding attorney may not wait more than thirty days from the entry
of final judgment, give notice of nonrepresentation, and then seek to enforce a
lien not noticed before the entry of the final judgment).
However, a charging lien may be
enforced in cases in which the court dismisses the case pursuant to a
settlement but expressly reserves jurisdiction on attorney's fees. Naftzger
v. Elam, 2010 Fla. App. LEXIS 10445 (Fla. 2d DCA 2010).
Effects of a perfected
charging lien
There is a fundamental difference
between the perfection of a charging lien and the imposition of the lien on
certain proceeds or property after it has been perfected. Gordon C. Brydger,
P.A. v. Wolfe, 847 So. 2d 1074, 1076 (Fla. 4th DCA 2003).
"'There are no requirements
for perfecting a charging lien beyond timely notice.” Gordon C. Brydger,
P.A. v. Wolfe, 847 So. 2d 1074, 1076 (Fla. 4th DCA 2003)
One of the advantages of a
perfected charging lien is that it may prevent the lienee from obtaining
unfettered access to the funds to the possible detriment of the lienor's
rights. Sharyn D. Garfield, P.A. v. Green, 687 So. 2d 1388 (Fla. 4th DCA
1997).
A charging lien "protects
counsel from the parties' looking after themselves at his expense Wishoff v.
Wishoff, 497 So. 2d 1351, 1353 (Fla. 4th DCA 1986) (Glickstein, J.,
concurring specially).
My source: http://www.familylawfla.org/cle/materials082510/materials_for_chargnig_lien_telephonic_CLE.pdf
