Defending Against Charging Liens
On October 7, 2022, the Second District Court of Appeal in State Farm v. Athans, was faced with a case to determine if a potential former law firm to Plaintiff was entitled to seek discovery from the defendant (State Farm) “to ascertain on the record whether or not there [was] a [charging] lien violation.” The Plaintiff and State Farm had resolved Plaintiff’s claim within another, earlier, matter without informing the Plaintiff’s former law firm. The former law firm, after learning the case resolved but did not preserve its charging lien, sought discovery from State Farm seeking to find evidence to prove a violation of its charging lien. The defense (State Farm) objected stating the requested materials were protected by both the work product and attorney-client privileges; the lower court granted the former Plaintiff law firm’s motion to compel discovery from State Farm’s internal and arguably privileged documents. “The trial court allowed the discovery to go forward reasoning it needed more information about the [former law firm’s] purported lien.” The defense (State Farm) sought relief with the Second District Court of Appeal via a writ of certiorari. The Second District stated that the former law firm had not shown a right or legal basis to impose a charging lien, thus, State Farm’s writ of certiorari was appropriate to determine if the lower court followed the essential requirements of the law. “The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him the judgment or recovery in that particular suit.” The Court held the former Plaintiff’s law firm was not involved in the earlier suit (that resulted in a settlement) and as such “the settlement in the earlier lawsuit was not the fruit of [the former law firm’s] labor, so there was nothing to which its purported lien could attach.” The Court cited Correa v. Christensen, 780 So.2d 220 (Fla. 5th DCA 2001)(“It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, product a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services.” (emphasis added). The Court also held the former law firm did nothing to preserve its lien when it could have either filed a notice of lien or pursued the lien in the original action but did not; including language in a pre-suit demand regarding the charging lien – as argued by the former law firm – was legally insufficient to preserve same. Thus, because the lower court required State Farm to participate in the former law firm’s discovery, the Second District quashed that order.
Interested readers can view the decision here (downloaded from The Second District Court of Appeal Offices website):
https://www.2dca.org/content/download/850588/opinion/211518_DC03_10072022_083256_i.pdf