John J. Pankauski is a partner with Pankauski Hauser PLLC in West Palm Beach, Florida. Mr. Pankauski has spent over 20 years of his career handling matters involving wills, trusts, estates, probates, and guardianships. His practice is limited to disputes, trials, and appeals of such matters. He is AV Preeminent rated by Martindale Hubel.
7. Discussion Outline
Introduction
$56 Trillion wealth shift
Increased litigation
Increased fee contests
Legal “Tension” between getting paid and our obligations and duties
to our clients
Legal Duties and Obligations to Our Clients
Rules Regulating the Florida Bar
5 Things You Need to Know About Charging Liens
Case law on charging liens
13. Elements of a Valid Charging Lien
See Walther v. Ossinksy & Cathcart, P.A. 112 So. 3d 116
(Fla., 5th DCA, 2013).
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;
4.Timely notice. Id at 117.
14. Essential Requirements
• It is not enough just to provide services !
• Your services must produce a positive result or
settlement
15. Essential Requirements
• Your lien attaches only to the tangible fruits
of the services provided by the Florida lawyer
Walther v. Ossinksy & Cathcart, P.A. 112 So. 3d 116 (Fla., 5th
DCA, 2013) at 117, citing Correa v. Christensen, 780 So. 2d 220
(Fla. 5th DCA, 2001)
16. Essential Requirements
• State a basis for your charging lien !
• Your notice of charging lien should allege that your
services produced monies, or other tangible property
or a positive result !
Walther v. Ossinksy & Cathcart, P.A. 112 So. 3d 116 (Fla., 5th
DCA, 2013) at 117, 118.
17. How do you provide timely notice?
• Email !
• Notice of Charging Lien in pending matter
• Communication to client’s new counsel
• See also Daniel Mones, P.A. v. Smith, 486 So. 2d
559 (Fla. 1986)
18. You still need personal jurisdiction over the attorneys
• Discharged non-Florida lawyers gave notice of charging lien
to Defendant when settlement was obtained
• Former client, who had filed a products liability action against
Defendant in Polk County (with new counsel), initiated
summary proceeding by filing a complaint –against former
non-Florida attorneys--in the products liability action in Polk
County seeking to determine charging lien
• 2nd DCA: must allege personal jurisdiction Jaffee & Hough,
P.C. v. Baine, 29 So. 3d 456 (Fla., 2nd DCA, 2010)
21. Appellate Review -- see Walther v. Ossinksy & Cathcart,
P.A. 112 So. 3d 116 (Fla., 5th DCA, 2013).
• Trial court’s order on charging liens may not depart from
the essential requirements of law
• Certiorari relief is appropriate
• An error at the trial level regarding charging liens means
that cert relief is required to prevent material injury
that cannot be corrected on post judgment appeal
23. Where do I go? -- see CK Regalia, LLC v.
Thornton, 159 So. 3d 358 (Fla., 3rd DCA, 2015).
• The proper forum for adjudicating the
validity, enforceability & amount of a charging
lien is with the trial judge before whom the
underlying action is pending.
24. Where do I go? -- see CK Regalia, LLC v.
Thornton, 159 So. 3d 358 (Fla., 3rd DCA, 2015).
• A separate dec action to have charging lien
declared, or determined to be, invalid is
improper and an advisory opinion.
25. Now hold on --- be patient
In a contingency fee matter where counsel is no
longer employed, determining validity of
charging lien is premature until there is a
recovery.
CK Regalia, LLC v. Thornton, 159 So. 3d 358
(Fla., 3rd DCA, 2015).
27. What’s the difference between a retaining
lien and a charging lien?
• An attorney has a right to a retaining lien
upon all of the client’s property in the
attorney’s possession
• Lien may not be impaired by client securing
the right to inspect and copy or compelling
their production – that would render the lien
meaningless
28. What’s the difference between a retaining
lien and a charging lien?
• Covers the balance due regardless of whether the
property is related to the matter or not
• Lien may be enforced until payment; or a “pressing
need” for the property is demonstrated and
adequate security for payment has been posted
Conde & Cohen, P.L. v. Grandview Palace Condo.
Assoc., 201 So. 3rd 64 (Fla. 3rd DCA, 2015)
29. What’s the difference between a retaining
lien and a charging lien?
See also Fox v. Widjaya, 201 So. 3d 26 (Fla., 3rd DCA,
2013).
30. Case law
1. Rebecca J. Covey, P.A. v. American Import Car Sales, 944 So. 2d 1202 (Fla. 4th DCA, 2006)
2. Jaffe & Hough, P.C. v. Baine, 29 So, 3d 456 (Fla. 2nd DCA, 2010)
3. Santini, M.D. v. Cleveland Clinic Florida, 65 So. 3d 22 (Fla 4th DCA, 2011) rehear. den. July 26, 2011.
4. Walther v. Ossinksy & Cathcart, P.A., 112 So. 3d 116 (Fla. 5th DCA, 2013)
5. Fox v. Widjaya, 201 So. 3d 26 (Fla. 3rd DCA, 2013)
6. CK Regalia, LLC v. Thornton, 159 So, 3d 358 (Fla., 3rd DCA, 2015)
7. Christopher N. Link, P.A. v. Rut, 165 So. 3d 768 (Fla. 4th DCA, 2015)
8. Conde & Cohen, P.L. v. Grandview Palace Condo. Assoc., Inc., 201 So. 3d 64 (Mem) (Fla. 3rd DCA,
2015)
