Focus on Ethics & Civility

Publication year2014
Pages14
Focus on Ethics & Civility
Vol. 27 No. 1 Pg. 14
Utah Bar Journal
February, 2014.

January, 2014.

LIENING ON CLIENTS

Keith A. Call.

Attorney's liens are fraught with potential problems. An attorney's lien has the potential to give the lawyer too much leverage in an already-unequal attorney-client relationship. It can make it difficult for the client to fire the lawyer and can give the lawyer too great an interest in the representation. Yet, Utah is actually a lawyer-friendly state when it comes to hens.

The Rules

Utah Rule of Professional Conduct 1.8(a) prohibits a lawyer from entering into a business transaction with a client or acquiring a security interest adverse to the client, unless (1) the transaction is fair and fully disclosed in writing; (2) the client is advised in writing to seek independent legal counsel; and (3) the client gives informed consent, again in writing. Utah R. Prof'l Conduct 1.8(a) (2013).

Rule 1.8(i) specifically provides that a lawyer shall not acquire an interest in the cause of action or subject matter of the litigation, except that the lawyer may (1) "acquire a hen authorized by law to secure [his] fee, " and (2) enter into a reasonable contingent fee arrangement in civil cases. Id. R. 1.8(i).

The Statutory Attorney's Lien

A "lien authorized by law" as described in Rule 1.8(i) (1) includes the statutory attorney's lien found in Utah Code section 38-2-7. By statute, a lawyer automatically receives a hen on any money or property that is the "subject of or connected with the work performed." Utah Code Ann. § 38-2-7(2) (LexisNexis 2010). This includes real or personal property, funds held by the attorney, and any settlement, judgment, and proceeds thereof. Id. The statute includes limitations on pending criminal and domestic relations matters. Id. § 38-2-7(9).

The statutory attorney's hen is not a "business transaction" with the client and is therefore exempt from the requirements of Rule 1.8(a). See Utah State Bar, Ethics Advisory Op. Comm, Op. 01-01 (2001). The Ethics Advisory Opinion Committee has further opined that, given a lack of clarity in the extent of an attorney's statutory hen rights, lawyers should not be subject to discipline for asserting hen rights according to a good faith interpretation of the statute. See id.

The statutory "attorney's hen commences at the time of employment." Utah Code Ann. §38-2-7(3). Notice of the hen can be given by filing a notice of hen in a pending legal...

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