It is very common for Florida claimants to change attorneys during litigation. Invariably, the now former attorney will immediately send a letter to the insurer and new attorney asserting
an attorney’s fee charging lien. Often, this letter is ignored, especially if very little work has been done on the case to date. However, if received, the insurer has a duty to protect the lien.
Virtually every jurisdiction in the United States recognizes the right of an attorney to recover fees by imposing a lien on a judgment obtained by his efforts for his client. See Scott v.
Kirtley, 113 Fla. 637, 152 So. 721 (1933); Note, Attorney and Client: Attorney's Charging Lien, 4 U. Fla. L. Rev. 58 (1951). Although Florida, unlike many jurisdictions, has not
codified this common law lien, its courts have long acknowledged the appropriateness of such a lien and the justification for allowing resolution by proceedings in equity:
The law is settled in this jurisdiction that a litigant should not be permitted to walk away with his judgment and refuse to pay his attorney for securing it. It is further consistent with law that an attorney's lien in a case like this be enforced in the proceeding where it arose. The parties are before the court, the subject matter is there, and there is no reason whatsoever why they should be relegated to another forum to settle the controversy.
In re Warner's Estate, 160 Fla. 160, 464, 35 So. 2d 296, 298-99 (1948) (citations omitted).
“A charging lien is 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.” Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983). An attorney’s charging lien attaches to the tangible fruits of the services. Correa v. Christensen, 780 So. 2d 220, 220 (Fla. 5th DCA 2001) (citing Sinclair, 428 So. 2d 1383). The establishment of the lien "declares the right of the attorney to participate in the recovery." Litman v. Fine, Jacobson, Schwartz, 517 So. 2d 88, 94 n.6 (Fla. 3d DCA 1987).
To establish or perfect a charging lien, the lienor-attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest. Sinclair, 428 So. 2d at 1385. A perfected lien is “chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be
entered in the future.” Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988); see also Hall, Lamb & Hall, P.A. v. Sherlon Inv’s. Corp., 7 So. 3d 639, 641 (Fla. 3d DCA 2009) (citing
Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney's charging lien, pays out a settlement to the attorney's client, and fails to protect the attorney's interest, the paying party may be held jointly and severally liable for the attorney's fees along with the attorney's client to the extent of the settlement proceeds or other funds held).
Insurers cannot avoid liability for the attorney's fees subject to attorney’s charging lien simply
because it transferred the funds to a third party. Law Office of Michael B. Brehne, P.A. v. Porter
Law Firm, LLC, 268 So.3d 854, 855 (Fla. 5th DCA 2019). As the paying party, an insurer has a
duty to protect the attorney’s lien by:
1. notifying the former attorney of the settlement,
2. including the former attorney on the settlement check,
3. obtaining a waiver of its lien in writing, or
4. obtaining a Hold Harmless agreement from the subsequent law firm.
Geico Gen. Ins. Co. v. Steinger, Iscoe & Greene, P.A., 275 So. 3d 775 (Fla. 3d DCA 2019). If
the funds remain in trust and have not been disbursed, the attorney’s lien has not been impaired.
However, should that situation change in the future, insurers cannot avoid liability for the
attorney’s fees subject to attorney’s lien. Brehne, 268 So. 3d at 855.
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