CHARGING LIENS RETAINING LIENS AND ENFORCEMENT IN by alicejenny

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									          CHARGING LIENS, RETAINING LIENS AND ENFORCEMENT
                       IN FAMILY LAW CASES1


CHARGING LIEN BASICS

Common Law – No Statutory Basis

Charging liens have been recognized in Florida for more than a century. Sinclair, Louis, Siegel,
Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983).

Charging liens arose under common law. Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla.
1986).

No statutes outline the requirements for valid attorney's liens in Florida. Rather, case law acts as the
sole guide for both attorneys and courts as to these liens. Daniel Mones, P.A. v. Smith, 486 So. 2d
559, 561 (Fla. 1986).

The charging lien is an equitable right to have costs and fees due an attorney for services in the suit
secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of
the attorney. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d
1383, 1384 (Fla. 1983).

A lawyer's charging lien arises out of an express or implied contract for legal services. State v. Am.
Tobacco Co., 723 So. 2d 263, 268 (Fla. 1998).

The entitlement to such a lien, however, cannot be contrary to the provisions of the contract for
legal service. State v. Am. Tobacco Co., 723 So. 2d 263, 268 (Fla. 1998).

Requirements for Charging Lien

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).



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    Materials prepared by Program Co-Chairs - Ralph T. White and Julia Wyda.

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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).



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RETAINING LIEN BASICS

Common Law – No Statutory Basis

Derived from the common law, the existence of the retaining lien does not depend on any
agreement between the lawyer and the client. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 62
(Fla. 4th DCA 1996) citing The Flush, 277 F. 25, 29 (2d Cir. 1921) (retaining lien "established on
general principles of justice").

In Florida, an attorney has a right to a retaining lien upon all of the client's property in the attorney's
possession, including money collected for the client. Daniel Mones, P.A. v. Smith, 486 So. 2d 559,
561 (Fla. 1986).

Possessory Lien

An attorney's retaining lien on a client's papers and files is a possessory lien that the attorney holds
until the fee has been paid or until adequate security for payment has been posted. Andrew Hall &
Assocs. v. Ghanem, 679 So. 2d 60, 62 (Fla. 4th DCA 1996) citing Wintter v. Fabber, 618 So. 2d 375
(Fla. 4th DCA 1993).

A retaining lien is a passive one; it cannot be enforced through foreclosure and rests wholly upon
the right to retain possession until the bill is paid. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d
60, 62 (Fla. 4th DCA 1996)

In Florida an attorney has a right to a retaining lien upon all of the client's property in the attorney's
possession, including money collected for the client. Daniel Mones, P.A. v. Smith, 486 So. 2d 559,
561 (Fla. 1986).

The pressure exerted by a retaining lien is directly proportional to the client's need and desire for the
things in the attorney's possession. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 62 (Fla. 4th
DCA 1996) citing Wintter, 618 So. 2d at 377.

Standing alone, the client's lack of funds to pay the outstanding bill does not defeat the retaining
lien. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 62 (Fla. 4th DCA 1996) citing In re San
Juan Gold, Inc., 96 F.2d 60 (2d Cir. 1938).

A retaining lien may not be impaired by the client securing the right to inspect and copy the papers
or compelling their production by subpoena. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 62
(Fla. 4th DCA 1996) citing The Flush, 277 F. at 31; Smith v. Patton, 562 So. 2d 859 (Fla. 1st DCA
1990).

If there is a dispute between the lawyer and client as to the fee owed, the trial court may hold a
hearing to liquidate the amount and determine the terms of an adequate security. Andrew Hall &
Assocs. v. Ghanem, 679 So. 2d 60, 62 (Fla. 4th DCA 1996).



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Practice Note:

If a trial court orders the return of a file or property over a retaining lien, the remedy is to
seek certiorari from the appellate court.

A firm has no adequate remedy on appeal and would be irreparably harmed if required to turn over
its file to the client before their fee is paid. Rutherford, Mulhall & Wargo, P.A. v. Antidormi, 695
So. 2d 1300, 1301 (Fla. 4th DCA 1997).

In Shelowitz, Shelowitz, Terrell & Coffey, P.A. v. Peters, 931 So. 2d 1059, 1060 (Fla. Dist. Ct. App.
4th Dist. 2006), a law firm sought certiorari. The firm argued it would be irreparably harmed if it
were to lose its retaining lien and return discovery papers to their former client. The trial court in an
ongoing dissolution of marriage proceeding granted a former client’s motion to release discovery
papers to her, in spite of her delinquency in paying fees she owes the firm. The firm filed a notice
of retaining lien. In granting release of the files, the trial court stated that the "firm does not have a
contract or a court order granting a retaining lien." The appellate court noted that the firm did have
an implied-in-fact contract, even if not written, and did not need a court order to maintain its
retaining lien. The Fourth District held that the order was capable of causing irreparable harm to
the firm's retaining lien and granted the petition for certiorari and quashed the order.

CHARGING LIENS v. RETAINING LIENS

A retaining lien differs from a charging lien. A charging lien is placed on any monetary recovery
due the client at the conclusion of the lawsuit. On the other hand, a retaining lien is a passive lien
and rests entirely on the right of an attorney to retain possession of his client's papers, money,
securities, and files as security for payment of the fees and costs earned by the law firm to that
point. Brickell Place Condo Ass'n v. Joseph H. Ganguzza & Assocs., P.A., 31 So. 3d 287, 289 (Fla.
3rd DCA 2010).

Unlike a charging lien, a retaining lien covers the balance due for all legal work done on behalf of
the client regardless of whether the property is related to the matter for which the money is owed to
the attorney. Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).

ADJUDICATION and ENFORCEMENT

Jurisdiction

The law is settled in Florida that a litigant should not be permitted to walk away with his judgment
and refuse to pay his attorney for securing it. It is further consistent with law that an attorney's
charging lien can be enforced in the proceeding where it arose. The parties are before the court, the
subject matter is there, and there is no reason whatsoever why they should be relegated to another
forum to settle the controversy. Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A. v.
Chernak, 991 So. 2d 875, 878 (Fla. 4th DCA 2008) citing In re Warner's Estate, 160 Fla. 460, 464,
35 So. 2d 296, 298-99 (1948).




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“The best method of protecting the attorney's right to fees while also protecting the confidential
nature of the attorney-client relationship is to enforce the charging lien in the proceeding from
which it arises.” Newton v. Kiefer, 547 So. 2d 727, 728 (Fla. 2d DCA 1989).

In an action for dissolution of marriage the court's authority to award attorney's fees is in reference
to determining the amount of attorney's fees, if any, payable by one party to the other (or other's
attorney), and that in such action the court has no power or jurisdiction to determine the fees due
from a party to his or her attorney, absent a claim of a charging lien. Klein-Brown v. Brown, 984
So. 2d 669, 671 (Fla. 4th DCA 2008).

The reasons for this rule is obvious when a litigant finds herself in an adversarial relationship with
her own counsel concerning his fee and thus is deprived of her right to due process in the
determination of that fee. Conroy v. Conroy, 370 So. 2d 1188, 1189 (Fla. 2d DCA 1979).

Timeframe for adjudicating charging lien

Court cannot impose charging lien when the underlying dissolution action has not reached a final
judgment. The imposition of a charging lien in this circumstance is premature. Walia v. Hodgson
Russ LLP, 28 So. 3d 987, 989 (Fla. Dist. Ct. App. 4th Dist. 2010).

Attachment of Charging Lien

It is not enough to support the imposition of a charging lien that an attorney has provided his
services; the services must, in addition, produce a positive judgment or settlement for the client,
since the lien will attach only to the tangible fruits of the services." Mitchell v. Coleman, 868 So.
2d 639, 641 (Fla. 2d DCA 2004).

In dissolution actions, property awarded as an equitable distribution of property rights is a
"proceed" to which a charging lien can attach, Litman v. Fine, Jacobson, Schwartz, Nash, Block &
England, P.A., 517 So. 2d 88, 92 (Fla. 3d DCA 1987) citing Conroy v. Conroy, 392 So.2d 934 (Fla.
2d DCA 1980).

In a paternity action a charging lien against an award for medical and other expenses may, if the
mother is not impecunious, be proper. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England,
P.A., 517 So. 2d 88, 92 (Fla. 3d DCA 1987)

Practice Note:

This case Sabin v. Butter, 522 So. 2d 939, (Fla 3d DCA 1988) has successfully been used to expand
the property that may be attached under a charging lien provision in a retainer contract.

In Sabin, the client engaged the attorney to represent him in a dissolution of marriage proceeding.
The client entered into a retainer agreement which provided the attorney with a charging lien on all
assets recovered or protected during the course of the proceeding. It did not identify any specific
property. The trial court entered a charging lien against real property of the client.



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The client appealed the charging lien, arguing that the attorney's charging lien is invalid because it
created no judgment proceeds to which a lien could attach. The appellate court noted that this
argument is premised on an overbroad statement of the law. The appellate court stated, “Although a
charging lien ordinarily attaches only to judgment proceeds, (Pasin v. Kroo, 412 So.2d 43 (Fla. 3d
DCA 1982)), the parties may enter into contracts which expressly subject other property to the
charging lien. (See Billingham v. Thiele, 109 So.2d 763 (Fla. 1959))”. Sabin v. Butter, 522 So. 2d
939, 940 (Fla. 3d DCA 1988).

Sample language for retainer agreement:

It is specifically agreed that THE LAW OFFICE _______ shall have and is hereby granted all
general, possessory and retaining liens and all equitable, special and attorney's charging liens upon
the client's interest in all real, personal and intangible property, for any balance due, owing and
unpaid; and such lien or liens shall be related back to the date of this agreement and shall be
superior in dignity to any other lien subsequent to the date hereof and are subject to statutory
interest. You understand that you are expressly subjecting all your real, personal and intangible
property, even those not subject to your litigation, to the attorney’s lien. THE LAW OFFICE OF
__________ shall be entitled to file a notice of Lis Pendens with regard to the client's interest in any
real property upon which a lien may be claimed.

Property that cannot be attached

Client cannot waive homestead exemption in a retainer contract. See Chames v. DeMayo, 972 So.
2d 850 (Fla. 2007) (The Supreme Court of Florida holds that a waiver of the homestead exemption
of Art. X, § 4(a), Fla. Const. in an unsecured agreement is unenforceable).

Alimony awards designed to provide "daily sustenance and the minimal necessities of life," and
child support payments, are not awards against which the charging lien can be enforced. Litman v.
Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 92 (Fla. 3d DCA 1987).

An attorney taking on pro bono representation of an indigent client in a dissolution action may not
obtain a charging lien unless the client waives the non-fee status. Litman v. Fine, Jacobson,
Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 92 (Fla. 3d DCA 1987).

Cannot secure fees for enforcing lien

A charging lien may not be used to secure fees incurred by the attorney in enforcing his lien. Cole
v. Kehoe, 710 So. 2d 705, 706 (Fla. Dist. Ct. App. 4th Dist. 1998).

Judgment and Interest

Once the trial court determines entitlement to and the amount of a charging lien, an enforceable
judgment should be entered in favor of the attorney and against the client. Mitchell v. Coleman, 868
So. 2d 639, 642 (Fla. Dist. Ct. App. 2d Dist. 2004)




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The client must be on notice that at the hearing on the adjudication of the charging lien that a money
judge might be entered against him. Shawzin v. Donald J. Sasser, P.A., 658 So. 2d 1148, 1150-
1151 (Fla. 4th DCA 1995). (The trial court erred in entering a money judgment against the client
without notice. The client had notice only that the firm was requesting a charging lien against the
real property, and did not have notice that a money judgment might be entered. Where an issue is
not presented by the pleadings, nor litigated by the parties, a judgment entered on that issue cannot
stand).

An attorney may recover prejudgment interest as part of his charging lien, provided that adequate
proof is provided to the trial court establishing the amount of such interest. Mitchell v. Coleman,
868 So. 2d 639, 642 (Fla. 2d DCA 2004).

Guardian Ad Litem may be paid over charging lien

A guardian ad litem does not have any statutory lien rights. However, where a guardian ad litem is
properly appointed and an award of fees lawfully granted, a trial court has the inherent authority in
a dissolution action to ensure that its court-appointed guardian ad litem is paid as a cost of litigation,
even at the expense of an attorney charging lien. Franklin & Criscuolo/Lienor v. Etter, 924 So. 2d
947, 950 (Fla. 3d DCA 2006).

Do not discharge proceeds over a charging lien

The lien is chargeable against any person who, at the time notice of intent to claim a lien is given,
holds monies or property which become proceeds of a judgment to be entered in the future.
Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988).

Where the husband was given notice that the charging lien would become enforceable against any
money and property awarded wife as a part of the judgment, on equitable principles, the husband
cannot avoid enforcement of this claim for payment by transfer of property to the wife in
anticipation of the approval of the settlement agreement by the final decree. Hutchins v. Hutchins,
522 So. 2d 547, 549 (Fla. Dist. Ct. App. 4th Dist. 1988).

In a dissolution proceeding, the wife’s former attorney filed a charging lien that was properly
perfected by the timely filing of the notice of the lien. Both the former husband and his attorney
had notice of the lien; yet, without notice to wife’s former attorney, a settlement agreement was
negotiated, which allowed for the entry of a final judgment that made no provision for the lien and
allowed all of the funds to be distributed directly to the wife.

The wife’s former attorney sought to enforce an attorney's charging lien against the former husband.
The trial court denied her motion.

The appellate court stated that since the wife’s former attorney had no opportunity to participate in
the settlement negotiations and was without notice that the particular negotiated judgment was
going to be entered, she was unable to protect her lien rights prior to the entry of that judgment.
Therefore, she was entitled to enforce her attorney's charging lien against the former husband.
Sharyn D. Garfield, P.A. v. Green, 687 So. 2d 1388, 1389 (Fla. Dist. Ct. App. 4th Dist. 1997).


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While the court does not discourage litigants from settling their controversies out of court, any such
settlement without the knowledge of or notice to counsel, and the payment of their fees is a fraud on
them whether there was an intent to do so or not. Boose, Casey, Ciklin, Lubitz, Martens, McBane &
O'Connell v. Guardianship of Runco, 741 So. 2d 1219, 1220 (Fla. 4th DCA 1999).

Practice Note:

If withdrawing from a case, use this language in your proposed order to help safeguard your
charging lien:

Copies of the proposed final judgment and the notice of trial or final hearing SHALL be forwarded
to The Law Office of ________ until its Charging Lien has been satisfied.

Any Final Judgment to be entered in the above styled cause SHALL reserve jurisdiction to
adjudicate the Charging Lien of the Law Office of ______________ against (former client).

Contract Actions

“Proceedings at law by an attorney against a client for fee collection are disfavored.” Newton v.
Kiefer, 547 So. 2d 727, 728 (Fla. 2d DCA 1989).

However, "If an attorney has not claimed a charging lien or there are no proceeds to which a lien
can attach, he nonetheless retains the right to sue the client on the contract in an action at law in
which the client is entitled to a jury trial." Richman Greer Weil Brumbaugh Mirabito &
Christensen, P.A. v. Chernak, 991 So. 2d 875, 882 (Fla. 4th DCA 2008).

Contracts or agreements for attorney's fees between an attorney and client will ordinarily be
enforceable according to the terms of such contracts or agreements, unless found to be illegal,
obtained through advertising or solicitation not in compliance with the Rules Regulating the Florida
Bar. Franklin & Marbin, P.A. v. Mascola, 711 So. 2d 46, 51 (Fla. 4th DCA 1998).

Quantum Meruit Actions

Where no valid fee agreement existed between the parties, the court could permit and award of a fee
strictly on the basis of quantum meruit. Levin v. Rosenberg, 372 So. 2d 956, 958 (Fla. 3d DCA
1979).

When a fee agreement between attorney and client fails to comply with the Rules Regulating the
Florida Bar, the attorney is entitled to recover on the basis of quantum meruit. King v. Young,
Berkman, Berman & Karpf, P.A., 709 So. 2d 572, 574 (Fla. 3d DCA 1998). (bonus provision of
contract making part of fee contingent upon results obtained in a divorce action was void, but firm
was still entitled to recover quantum meruit for its services).

Collecting on your judgment



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Upon the entry of a money judgment against your client you can do the following help collect on
the judgment:

File a Motion for Writ of Execution
Record a certified copy of the judgment with the Clerk of Court.
Record the judgment lien certificate with the Department of State.
Schedule the former client for a deposition in aid of execution.
Send interrogatories to client to ascertain what assets are available to levy.

HIRING A COLLECTION FIRM

Advantages
  • Save time and you can focus on practicing family law and not collection work.
  • Less hassle for you, the former client deals with collection firm and not your office.
  • A collection agency has personnel that deal constantly with legal collections
     and are effective in collecting from debtors.
  • Don’t pay collection firm unless they collect.

Disadvantages
   • Lose of control of collections.
   • Collection firm takes a percentage of your fee award.
   • Could damage your professional reputation, if the firm is extremely aggressive in its
      collection methods.

ETHICAL ISSUES

In an attorney lien context, only in rare cases will an attorney's files be released without payment or
the furnishing of adequate security, such as when the lawyer's misconduct caused his withdrawal or
when the client has an urgent need for the file to defend a criminal prosecution and lacks the means
to pay the fee or post a bond. Courts also find an exception where the attorney has filed a
counterclaim or an independent action seeking to collect the fee. Foreman v. Behr, 866 So. 2d 705
(Fla. 2d DCA 2003)

An attorney who brings an action against his client for fees is not entitled to the enforcement of a
retaining lien to avoid discovery of the client's files. Foreman v. Behr, 866 So. 2d 705 (Fla. 2d DCA
2003).

Where the attorney files suit to recover fees for services rendered, the objecting client needs to
examine the work done by the lawyer to determine the reasonableness of the fees. In order to prove
that fee, the attorney will undoubtedly be required to have another attorney review his file and opine
as to the reasonableness of the fee. By preventing the client/defendant that same access, what the
attorney seeks is to completely eviscerate any possibility that the client could effectively contest
that testimony. The retaining lien is equitable in nature and cannot be used as a sword to force an
inequitable situation. Michael J. Fingar, P.A. v. Braun & May Realty, Inc., 807 So. 2d 202, 204
(Fla. 4th DCA 2002).


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RULES REGULATING THE FLORIDA BAR

Rule 4-1.5. Fees and Costs for Legal Services

  (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. --An attorney shall not enter into an
agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee
generated by employment that was obtained through advertising or solicitation not in compliance
with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when:

  (1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm
conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a
degree as to constitute clear overreaching or an unconscionable demand by the attorney; or

  (2) the fee or cost is sought or secured by the attorney by means of intentional misrepresentation
or fraud upon the client, a nonclient party, or any court, as to either entitlement to, or amount of, the
fee.

(b) Factors to Be Considered in Determining Reasonable Fee and Costs.

 (1) Factors to be considered as guides in determining a reasonable fee include:

   (A) the time and labor required, the novelty, complexity, and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;

   (B) the likelihood that the acceptance of the particular employment will preclude other
employment by the lawyer;

    (C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable
or similar nature;

    (D) the significance of, or amount involved in, the subject matter of the representation, the
responsibility involved in the representation, and the results obtained;

   (E) the time limitations imposed by the client or by the circumstances and, as between attorney
and client, any additional or special time demands or requests of the attorney by the client;

   (F) the nature and length of the professional relationship with the client;

    (G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the
service and the skill, expertise, or efficiency of effort reflected in the actual providing of such
services; and

    (H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the
client's ability to pay rested to any significant degree on the outcome of the representation.

 (2) Factors to be considered as guides in determining reasonable costs include:

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   (A) the nature and extent of the disclosure made to the client about the costs;

   (B) whether a specific agreement exists between the lawyer and client as to the costs a client is
expected to pay and how a cost is calculated that is charged to a client;

   (C) the actual amount charged by third party providers of services to the attorney;

    (D) whether specific costs can be identified and allocated to an individual client or a reasonable
basis exists to estimate the costs charged;

   (E) the reasonable charges for providing in-house service to a client if the cost is an in-house
charge for services; and

   (F) the relationship and past course of conduct between the lawyer and the client.

  All costs are subject to the test of reasonableness set forth in subdivision (a) above. When the
parties have a written contract in which the method is established for charging costs, the costs
charged thereunder shall be presumed reasonable.

(c) Consideration of All Factors. --In determining a reasonable fee, the time devoted to the
representation and customary rate of fee need not be the sole or controlling factors. All factors set
forth in this rule should be considered, and may be applied, in justification of a fee higher or lower
than that which would result from application of only the time and rate factors.

(d) Enforceability of Fee Contracts. --Contracts or agreements for attorney's fees between attorney
and client will ordinarily be enforceable according to the terms of such contracts or agreements,
unless found to be illegal, obtained through advertising or solicitation not in compliance with the
Rules Regulating The Florida Bar, prohibited by this rule, or clearly excessive as defined by this
rule.

(e) Duty to Communicate Basis or Rate of Fee or Costs to Client. --When the lawyer has not
regularly represented the client, the basis or rate of the fee and costs shall be communicated to the
client, preferably in writing, before or within a reasonable time after commencing the
representation. A fee for legal services that is nonrefundable in any part shall be confirmed in
writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable
fee. The test of reasonableness found in subdivision (b), above, applies to all fees for legal services
without regard to their characterization by the parties.

The fact that a contract may not be in accord with these rules is an issue between the attorney and
client and a matter of professional ethics, but is not the proper basis for an action or defense by an
opposing party when fee-shifting litigation is involved.

(f) Contingent Fees. --As to contingent fees:




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 (3) A lawyer shall not enter into an arrangement for, charge, or collect:

    (A) any fee in a domestic relations matter, the payment or amount of which is contingent upon
the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu
thereof;

Comments to Rule 4-1.5
Since the fee arbitration rule (Chapter 14) has been established by the bar to provide a procedure for
resolution of fee disputes, the lawyer should conscientiously consider submitting to it.

Rule 14-4.1. Arbitration Proceedings

  (a) Institution of Proceedings. --All arbitration proceedings shall be instituted by the filing of a
written consent to arbitration by written contract between the parties to the arbitration, or orders of
this court in proceedings under these Rules Regulating The Florida Bar imposing a sanction or
condition or probation, or by the consent form prescribed in the policies adopted under the authority
of this chapter and signed by each party to the controversy.

(b) Position Statement and Relevant Documents. --Each of the parties shall provide the arbitrator(s)
with a concise statement of that party's position, including the amount claimed or in controversy, on
the form prescribed and authorized by the standing committee. If there is a written contract
regarding fees between the parties, a copy of that written contract shall accompany the request or
submission.

(c) Referral by Intake Counsel or Bar Counsel. --Intake counsel with the consent of the parties and
concurrence of staff counsel, or bar counsel, with the consent of the parties, and the concurrence of
the chief branch staff counsel, may refer appropriate cases to the fee arbitration program.

(d) Referral by Grievance Committees. --Grievance committees, with concurrence of bar counsel
and consent of the parties, may refer appropriate cases to the fee arbitration program.

(e) Referral by Board of Governors. --The board of governors, with the agreement of the parties
and upon review of a file referred to it as authorized elsewhere under these Rules Regulating The
Florida Bar, may refer appropriate cases to the fee arbitration program if they meet the criteria
established by the policies adopted under the authority of this chapter.

Rule 4-1.8. Conflict of Interest; Prohibited and Other Transactions

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(i) Acquiring Proprietary Interest in Cause of Action. --A lawyer shall not acquire a proprietary
interest in the cause of action or subject matter of litigation the lawyer is conducting for a client,
except that the lawyer may:

 (1) acquire a lien granted by law to secure the lawyer's fee or expenses.


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               ROBIN ROSHKIND, P.A., Appellant, v. BELINDA CHARLENE
                             MACHIELA, Appellee.

                                           No. 4D10-203

                  COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

                     2010 Fla. App. LEXIS 10348; 35 Fla. L. Weekly D 1571

                                       July 14, 2010, Decided

NOTICE:                                                  along with the motion for entry of the charging
                                                         lien and a motion to withdraw. The trial court
   NOT FINAL UNTIL DISPOSITION OF
                                                         granted the motion to withdraw but denied the
TIMELY    FILED    MOTION     FOR
                                                         motion for entry on the charging lien. The trial
REHEARING.
                                                         court denied the firm's motion based upon its
                                                         failure to call an independent expert witness to
PRIOR HISTORY: [*1]
                                                         testify concerning the reasonableness of the
 Appeal of non-final order from the Circuit
                                                         fees. The appellate court found that while the
Court for the Fifteenth Judicial Circuit, Palm
                                                         firm provided billing records showing the
Beach County; Elizabeth T. Maass, Judge; L.T.
                                                         number of hours expended, and the retainer
Case No. 50 2008DR011685 MB.
                                                         agreement establishing the rate charged, it did
                                                         not provide independent expert testimony that
CASE SUMMARY:
                                                         either the rate or the hours expended were
                                                         reasonably necessary.
PROCEDURAL POSTURE: Appellant law
                                                         OUTCOME: The judgment was affirmed. The
office appealed the non-final order of the
                                                         appellate court certified a question regarding
Circuit Court for the Fifteenth Judicial Circuit,
                                                         whether expert testimony was necessary to
Palm Beach County (Fla.) that found in favor
                                                         establish attorney's fees due under a charging
of appellee former client and denied the firm's
                                                         lien against a client who had entered into a
notice of charging lien and a corrected motion
                                                         retainer agreement that required all fee disputes
for entry of final judgment adjudicating the
                                                         to be made in writing within 30 days of the
charging lien.
                                                         bill's receipt and had failed to object.
OVERVIEW: The client entered into a
retainer agreement for representation in a               LexisNexis(R) Headnotes
dissolution of marriage proceeding. The
agreement provided for an initial non-                   Civil Procedure > Remedies > Costs &
refundable retainer, an hourly rate for attorney         Attorney Fees > Attorney Expenses & Fees >
and paralegal time, and a lien for monies due            General Overview
under the agreement. The agreement also                  Civil Procedure > Appeals > Standards of
required the client to notify the firm in writing        Review > Abuse of Discretion
within 30 days if there was an objection to the          Civil Procedure > Appeals > Standards of
fees charged. The client paid $ 48,268 of the            Review > De Novo Review
                                                         [HN1] An appellate court reviews trial court
total billed, leaving a balance of $ 57,785.28.
                                                         orders on attorney's fees for an abuse of
The law firm filed a notice of charging lien

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discretion. An appellate court has de novo              COUNSEL: Robin Roshkind, West Palm
review however of the trial court's                     Beach, and Robin Bresky, Boca Raton, for
interpretation of law.                                  appellant.

                                                        No brief filed on behalf of appellee.
Legal Ethics > Client Relations > Attorney
Fees > Fee Agreements                                   JUDGES: MAY, J. WARNER and TAYLOR,
[HN2] An attorney employed under a valid                JJ., concur.
contract who is discharged without cause
before the contingency has occurred or before           OPINION BY: MAY
the client's matters have concluded can recover
only the reasonable value of his services               OPINION
rendered prior to discharge, limited by the                MAY, J.
maximum contract fee.
                                                            The     long-standing     requirement      of
                                                        independent expert witness testimony to
Civil Procedure > Remedies > Costs &                    support a claim for attorney's fees is challenged
Attorney Fees > Attorney Expenses & Fees >              in this appeal. The law firm appeals an order
Reasonable Fees                                         denying its motion for attorney's fees based on
Legal Ethics > Client Relations > Attorney              a charging lien. It argues that independent
Fees > General Overview                                 expert witness testimony is unnecessary in the
[HN3] Generally, where a party seeks to have            enforcement of a charging lien against a client.
the opposing party in a lawsuit pay for                 We find no error in the trial court's ruling and
attorney's fees incurred independent expert             affirm. We do however find merit in the law
testimony is required. And, case law                    firm's argument and therefore certify the
throughout Florida has adhered to the                   question.
requirement of an independent expert witness                 The client entered into a retainer agreement
to establish the reasonableness of fees,                for representation in a dissolution of marriage
regardless of whether a first or third party is         proceeding. The agreement provided for an
responsible for payment.                                initial non-refundable retainer, an hourly rate
                                                        for attorney and paralegal time, and a lien for
                                                        monies due under the agreement. The
Civil Procedure > Remedies > Costs &                    agreement also required the client to notify the
Attorney Fees > Attorney Expenses & Fees >              firm in writing within thirty days if there was
Reasonable Fees                                         an objection [*2] to the fees charged.
[HN4] The establishment of a reasonable fee
for an attorney's service is not simply the                 The client paid $ 48,268 of the total billed,
number of hours times the hourly rate. While            leaving a balance of $ 57,785.28. The client did
the reasonableness of fees charged is, and              not object in writing to the fees charged. In the
should remain, an important consideration, it is        dissolution action, the firm filed a Notice of
a factor that may not mandate an expert                 Charging Lien, a Corrected Motion for Entry of
independent of the litigating attorneys and the         Final Judgment Adjudicating Charging Lien
trial judge.                                            and for Entry of a Money Judgment, and a
                                                        Motion to Withdraw. The trial court granted the
                                                        Motion to Withdraw on October 21, 2009, held
                                                        a final hearing of the dissolution on December


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15 and 17, 2009, and heard the law firm's                 of the case. Yet, here, the client did not
attorney's fees motion four days later.                   discharge the attorney, the attorney withdrew.
    At the December 21st hearing, the                         [HN3] Generally, "where a party seeks to
responsible attorney testified to the firm's              [*4] have the opposing party in a lawsuit pay
engagement and the client's failure to object to          for attorney's fees incurred . . . independent
the bills in writing as provided for in the               expert testimony is required." Sea World of
retainer agreement. In addition, the court                Fla., Inc. v. Ace Am. Ins. Cos., Inc., 28 So. 3d
received into evidence the retainer agreement,            158, 160 (Fla. 5th DCA 2010), review granted,
the complete billing history, and the Notice of           2010 Fla. LEXIS 950, 2010 WL 2383319 (Fla.
Charging Lien. The court denied the firm's                June 10, 2010) (expert witness testimony is
motion based upon its failure to call an                  unnecessary in litigation over fees incurred to
independent expert witness to testify                     defend breach of contract action). And, case
concerning the reasonableness of the fees.                law throughout this state has adhered to the
                                                          requirement of an independent expert witness
     The firm appeals the order denying fees and
                                                          to establish the reasonableness of fees,
argues the court erred in requiring independent
                                                          regardless of whether a first or third party is
expert witness testimony. 1 [HN1] We review
                                                          responsible for payment. Sourcetrack, LLC v.
trial court orders on attorney's [*3] fees for an
                                                          Ariba, Inc., 34 So. 3d 766 (Fla. 2d DCA 2010).
abuse of discretion. Glantz & Glantz, P.A. v.
Chinchilla, 17 So. 3d 711, 713 (Fla. 4th DCA                   We have, however, previously questioned
2009). We have de novo review however of the              the      judicially-created     requirement   of
trial court's interpretation of law. G.S. v. T.B.,        independent expert witness testimony in
985 So. 2d 978, 982 (Fla. 2008).                          establishing the reasonableness of attorney's
                                                          fees. See Island Hoppers, Ltd. v. Keith, 820 So.
      1     The firm relies on Franklin &                 2d 967, 972 (Fla. 4th DCA 2002), reversed on
      Marbin, P.A. v. Mascola, 711 So. 2d 46              other grounds by Sarkis v. Allstate Ins. Co.,
      (Fla. 4th DCA 1998) and Gossett &                   863 So. 2d 210 (Fla. 2003); see also Robert J.
      Gossett, P.A. v. Mervolion, 941 So. 2d              Hauser et al., Is Expert Testimony Really
      1207 (Fla. 4th DCA 2006). However,                  Needed in Attorneys' Fee Litigation, 77 Fla.
      neither case truly supports its argument            Bar J. 38 (Jan. 2003). Nevertheless it remains
      because an expert witness testified in              etched in our case law. This is because
      Franklin and it is unclear whether an               attorneys have an ethical [*5] duty, pursuant to
      expert testified in Gossett.                        the Florida Rules Regulating the Florida Bar, to
                                                          charge fair and reasonable fees, regardless of
    In Rosenberg v. Levin, 409 So. 2d 1016
                                                          the terms of the fee agreement. See Elser v.
(Fla. 1982), our Supreme Court held
"that[HN2] an attorney employed under a valid             Law Offices of James M. Russ, P.A., 679 So. 2d
                                                          309, 312-13 (Fla. 5th DCA 1996). "[HN4] The
contract who is discharged without cause
                                                          establishment of a reasonable fee for an
before the contingency has occurred or before
                                                          attorney's service is not simply the number of
the client's matters have concluded can recover
                                                          hours times the hourly rate." Schwartz, Gold &
only the reasonable value of his services
rendered prior to discharge, limited by the               Cohen, P.A. v. Streicher, 549 So. 2d 1044, 1046
                                                          (Fla. 4th DCA 1989). While the reasonableness
maximum contract fee." Id. at 1021. Rosenberg
                                                          of fees charged is, and should remain, an
clarified that quantum meruit limited by the
                                                          important consideration, it is a factor that may
contract, dictated the proper measure of fees
                                                          not mandate an expert independent of the
when the attorney is discharged before the end
                                                          litigating attorneys and the trial judge.


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    Here, the firm sought fees through                   are either reasonable or unreasonable. The trial
enforcement of a charging lien. While the firm           court is ultimately left to decide the
provided billing records showing the number of           reasonableness of the rate charged and time
hours expended, and the retainer agreement               expended, and then to tax the cost of the expert
establishing the rate charged, it did not provide        witness against the losing party.
independent expert testimony that either the                 We therefore reluctantly affirm, but certify
rate or the hours expended were reasonably               the following question to the Supreme Court of
necessary. This led the trial court to deny the          Florida.
law firm's motion. As did the trial court, we
find the result was dictated by existing case                    Is expert witness testimony
law.                                                           necessary to establish attorney's
    Even so, the facts of this case provide the                fees due under a charging lien
perfect context in which to again question the                 against a client, who has entered
validity [*6] of requiring an independent                      into a retainer agreement that
expert witness to establish the reasonableness                 requires all fee disputes to be made
of attorney's fees charged, especially when the                in writing within thirty days of the
dispute is between a law firm and its client.                  bill's receipt and has failed to
Here, the lawyer was not discharged by the                     object?
client. Rather, the client refused to pay the
agreed upon fee without objecting in writing in
thirty days, which the retainer agreement                   Affirmed.
required. When the lawyer sought to enforce its
agreement through proper, recognized means, it              WARNER and TAYLOR, JJ., concur.
was confronted with a requirement that seems
to have long outlasted its usefulness.
    We live in a litigation era where contractual
and statutory fees are commonplace and no
longer the exception. Indeed, attorney's fees
seem to drive some litigation where the
underlying dispute pales in comparison to the
potential of a fee award. Trial judges are daily
confronted with requests for attorney's fees.
They are aware of the going rates in their
communities for lawyer's services, and whether
the time expended is reasonable. Eliminating
the need for an independent expert witness does
not     eliminate      the     requirement     of
reasonableness. Lawyers and parties can still
argue about the reasonableness of the rate
charged and the time expended.
    There is little reason to [*7] simply
increase litigation costs by requiring another
lawyer to testify as an expert. After all, each
party usually chooses a lawyer friend, who will
willingly testify that the rate and time expended

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