Putting a Milking Stool Behind a Horse Does Not Make it a Cow: "Accountants' Charging and Retaining Liens" in Florida.

Author:Insignares, Luis
Position:Family Law

In family law practice, in particular, lawyers become familiar with seeing their opposite numbers file notices of charging liens, and similar filings, and themselves taking such steps, in an effort to secure payment of their attorneys' fees. So, seeing such a docket entry as filed by, say, the fictional law firm of Maxis, Simulacra, & Lykenesse, LLC, is commonplace.

But what about if the same paper is instead filed by one Ms. Ruth Appleseed, CPA? Is there even such a thing as an accountant's charging lien? What about a retaining lien asserted by an accountant?

My firm had certainly never heard of either one. Until recently, when an accountant, employed by an opponent as an expert witness in a family law matter, filed a motion asserting a purported charging lien.

It was and is our position that neither the fictional Ms. Appleseed, nor any accountant, fictional, or real, has any standing to claim a charging or retaining lien in Florida. The argument can begin with the very definition of the terms. In Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 91 (Fla. 3d DCA 1987), rev. den., 525 So. 2d 879 (Fla. 1988), the court defined a charging lien as "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." (1) The argument is further strengthened, twice in fact, when one looks at the caselaw defining the individual elements of the remedy: "There are four requirements for a valid charging lien: (1) an express or implied contract between attorney and client; (2) an express or implied understanding for payment of attorneys' fees out of the recovery; (3) either an avoidance of payment or a dispute as to the amount of fees; and (4) timely notice." (2)

A similar analysis applies to retaining liens. In Leiby Taylor Stearns Linkhorst & Roberts, P.A. v. Wedgewood Air Conditioning, Inc., 801 So. 2d 127 (Fla. 4th DCA 2001), the appellate court cited the same Daniel Mones, P.A., case cited immediately above, noting "In Daniel Mones ... the supreme court discussed an attorney's right to a retaining lien: 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....

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 ... (citation omitted)." (3) In a mere two sentences, the court reaffirmed, no less than five times, the notion that a retaining lien is one available to an attorney.

Now admittedly, these cases do not involve claims by accountants asserting such liens, so all these cases are factually inapposite. Thus, the above cases do not go so far as to explicitly state that charging liens and retaining liens are remedies available solely and exclusively to lawyers, and not to anyone else (such as accountants). There are many reasons why these cases in fact mean just exactly that.

Under the doctrine of "expressio unius est exclusio alterius," the mention of one thing implies the exclusion of another. (4) Stated more forcefully, the expression of one thing is the exclusion of the other. (5) In other words, when a provision of law expressly describes items or things that are subject to that provision, an inference must be drawn that items not included by specific reference were intended to be omitted or excluded. (6)

So, since all the Florida caselaw definitions specifically refer to the lienor of a charging or retaining lien as an "attorney," there is a good argument that the intention of such opinions is that, conversely, nonlawyers cannot properly assert such liens under Florida law. While there do not appear to be reported Florida appellate opinions specifically holding that accountants cannot assert charging or retaining liens, there are additional reasons why that should be true as well.

For example, at least as to charging liens, there is the additional issue of causation. Putting aside the dichotomy between attorneys and accountants, momentarily, even as to lawyers it is not enough that an attorney is purportedly simply owed money by a client, which will then automatically entitle the lawyer to a lien on any proceeds the client might be awarded later in the case.

Rather, Florida courts have repeatedly rejected the contention that simply because an attorney goes unpaid by a client, he or she is entitled to whatever judgment or settlement the client might later receive as a result of the work of a different person, such as successor counsel. In Rochlin v. Cunningham, 739 So. 2d 1215 (Fla. 4th DCA 1999), for example, an attorney agreed to represent a woman, Cunningham, in a paternity action against the man believed to be the father of her child. (7) After nine months, the woman dismissed the attorney and retained another attorney who proceeded to settle the action. (8)

The trial court denied the first attorney a charging lien, because she was not the attorney who obtained the benefit for the client. The appellate court affirmed, opining: (9)

[A]ppellant contends that the trial court erred in failing to grant her a charging lien for the full amount of her fees in the paternity action. She also claims that, to the extent the...

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