Washington Lawyer - March/April 2021 - 44

SPEAKING OF E THICS

Charging Liens:
A Look at LEO 379
By Nakia L. Matthews

I

Don't forget we have attorney-client privilege,
n June 2019, attorney Jonas
so you can't tell him anything about our relaLawyer signed a fee agreement
tionship because it is confidential. " Before a trial
date could be set, Stan negotiated a settlement
with Jim Client. Jim hired Jonas
for $310,000.
to sue his doctor for medical
Jonas had been monitoring the case and
malpractice. Jonas took the case on discovered that it settled. He promptly sent
a notice of lien to Stan. Jim said he didn't know
a standard one-third contingency
he still had to pay Jonas, and he disagrees that
basis and entered a fee agreement Jonas has a right to a lien, as did Stan who never
asked about the circumstances surrounding
with the client as required by Rule
Jim's decision to switch counsel. Stan, who felt
he owed nothing to Jim's former attorney (as
1.5,1 but the agreement did not
Stan was the only attorney who was able to
give Jonas an express lien in future close the deal!), disbursed all the funds from the
funds recovered from the litigation. settlement according to his own fee agreement
with Jim, which included a 40 percent recovery
The language in the retainer did
to himself as attorney's fees.
say that Jim agreed to " pay my
DISCUSSION
attorney for his services one-third
In Opinion 379, the D.C. Bar Legal Ethics
Committee discusses the ethical use of
of any sum recovered as a result
charging liens to collect attorney's fees. The
of the medical malpractice case
opinion reaches three significant conclusions:
(1) Although Rule 1.6 may restrict the client
brought against my doctor. "
Jonas subsequently filed a complaint in D.C.
Superior Court. In July 2020, the parties submitted cross-motions for summary judgment.
While the motions were pending, the parties
negotiated a settlement for $300,000. Jim
turned down the offer and fired Jonas because
he decided he could negotiate a better settlement on his own. After the court granted his
motion to withdraw, Jonas turned over Jim's
file but withheld a draft motion in limine due
the following week.
Jim was unable to negotiate a larger settle ment and the court denied both motions for
summary judgment. Jim then hired Stan
Successor. Jonas let Jim know that he would be
happy to discuss the case with Stan, but Jim
told him, " I don't want you talking to my new
lawyer, ever, about anything to do with me.

44 WASHINGTON LAWYER

*

MARCH/APRIL 2021

committee reiterated in Opinion 379, the entire
file belongs to the client and must be surrendered to the client when the lawyer is discharged. This is the principle embodied in Rule
1.16(d) and further reiterated in Legal Ethics
Opinions 250, 283, and 333.2
Jonas may have thought that under Rule 1.8(i)
he had the right to assert a retaining lien on
the draft motion. While a lawyer may assert a
retaining lien in certain instances, that ability is
far from absolute. As the committee states in
Opinion 372, " a lawyer who relies on the narrow
exception of Rule 1.8(i) to withhold any part of
a client file does so at his own peril. " Rule 1.8(i)
clearly states that " [t]his work product exception
shall not apply when the client has become
unable to pay, " as was likely the case with Jim
(there had been no recovery in his contingency
fee matter at the time). Therefore, Jonas improperly withheld the motion from Jim and should
have turned it over with the rest of Jim's file.

information a lawyer may include in a notice
of lien and the information a lawyer may reveal
in court to collect the fees, it does not restrict
a predecessor lawyer's ability to give notice
of the lien to successor counsel (or the likely
holder of the property subject to the lien); (2) in
a matter that may be subject to a charging lien,
successor counsel is required by Rules 1.5(b)
and (c) to notify the client at the beginning of
the representation that the previous attorney
may have a claim to any eventual recovery; and
(3) successor counsel has a duty under Rule 1.15
to safeguard the funds that may be due to the
previous counsel once successor counsel is
aware that predecessor counsel may have
a " just claim. "

Rule 1.6 and Notice of Lien to Successor
Counsel. Jim's request that Jonas not contact
Stan does not prohibit Jonas from serving
Stan with notice of a charging lien. When Jim
told Jonas not to talk with his new lawyer, he
likely thought that this directive prohibited all
communication between Jonas and Stan
regarding his case. In Opinion 379, the committee concludes that " client demands for
secrecy cannot preclude all communications
relating to the assertion and enforcement of
charging liens . . . when the attorney with the
charging lien reasonably believes it necessary
to protect the lien to give notice of that lien to
successor counsel . . . that notice may be given
even if the client objects to it. " A client cannot
use Rule 1.6 as a shield to prevent an attorney
from providing notice of a lien. Therefore, Jonas
did not violate Rule 1.6 when he gave notice
of the lien to Stan.

Rule 1.16(d) and the Client File. The draft
motion in limine is a part of the client's file
and should have been provided to Jim. As the

Rule 1.5 and Successor Counsel's Obligation
to Discuss a Potential Charging Lien. Stan
should have notified Jim that Jonas could assert



Washington Lawyer - March/April 2021

Table of Contents for the Digital Edition of Washington Lawyer - March/April 2021

Digital Extras
From Our President
Calendar of Events
Practice Management
Toward Well-Being
Staying Put in Big Law feature
A Sisterhood of Latina Lawyers Sidebar
Increasing Diversity & Inclusion the the Legal Profession feature
Cultivate Mentorships sidebar
A Tribute to Judge June L. Green feature
Delicate Balance for Black Women Attorneys in Government Feature
Falling Short on Disability Inclusion feature
Elusive Justice in Violence Against Native Women feature
Worth Reading
On Further Review
The Learning Curve
Member Spotlight - Marcia Madsen
Member Spotlight - Simon Zinger
ABA Delegates Corner
Attorney Briefs
Speaking of Ethics
Disciplinary Summaries
The Pro Bono Effecy
A Slice of Wry
Washington Lawyer - March/April 2021 - Cover1
Washington Lawyer - March/April 2021 - Cover2
Washington Lawyer - March/April 2021 - 1
Washington Lawyer - March/April 2021 - 2
Washington Lawyer - March/April 2021 - 3
Washington Lawyer - March/April 2021 - Digital Extras
Washington Lawyer - March/April 2021 - 5
Washington Lawyer - March/April 2021 - From Our President
Washington Lawyer - March/April 2021 - Calendar of Events
Washington Lawyer - March/April 2021 - Practice Management
Washington Lawyer - March/April 2021 - Toward Well-Being
Washington Lawyer - March/April 2021 - Staying Put in Big Law feature
Washington Lawyer - March/April 2021 - 11
Washington Lawyer - March/April 2021 - A Sisterhood of Latina Lawyers Sidebar
Washington Lawyer - March/April 2021 - 13
Washington Lawyer - March/April 2021 - Increasing Diversity & Inclusion the the Legal Profession feature
Washington Lawyer - March/April 2021 - 15
Washington Lawyer - March/April 2021 - Cultivate Mentorships sidebar
Washington Lawyer - March/April 2021 - 17
Washington Lawyer - March/April 2021 - A Tribute to Judge June L. Green feature
Washington Lawyer - March/April 2021 - 19
Washington Lawyer - March/April 2021 - 20
Washington Lawyer - March/April 2021 - 21
Washington Lawyer - March/April 2021 - Delicate Balance for Black Women Attorneys in Government Feature
Washington Lawyer - March/April 2021 - 23
Washington Lawyer - March/April 2021 - 24
Washington Lawyer - March/April 2021 - 25
Washington Lawyer - March/April 2021 - Falling Short on Disability Inclusion feature
Washington Lawyer - March/April 2021 - 27
Washington Lawyer - March/April 2021 - 28
Washington Lawyer - March/April 2021 - 29
Washington Lawyer - March/April 2021 - Elusive Justice in Violence Against Native Women feature
Washington Lawyer - March/April 2021 - 31
Washington Lawyer - March/April 2021 - 32
Washington Lawyer - March/April 2021 - Worth Reading
Washington Lawyer - March/April 2021 - 34
Washington Lawyer - March/April 2021 - 35
Washington Lawyer - March/April 2021 - On Further Review
Washington Lawyer - March/April 2021 - The Learning Curve
Washington Lawyer - March/April 2021 - Member Spotlight - Marcia Madsen
Washington Lawyer - March/April 2021 - Member Spotlight - Simon Zinger
Washington Lawyer - March/April 2021 - 40
Washington Lawyer - March/April 2021 - 41
Washington Lawyer - March/April 2021 - ABA Delegates Corner
Washington Lawyer - March/April 2021 - Attorney Briefs
Washington Lawyer - March/April 2021 - Speaking of Ethics
Washington Lawyer - March/April 2021 - 45
Washington Lawyer - March/April 2021 - Disciplinary Summaries
Washington Lawyer - March/April 2021 - 47
Washington Lawyer - March/April 2021 - The Pro Bono Effecy
Washington Lawyer - March/April 2021 - 49
Washington Lawyer - March/April 2021 - 50
Washington Lawyer - March/April 2021 - 51
Washington Lawyer - March/April 2021 - A Slice of Wry
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Washington Lawyer - March/April 2021 - Cover4
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