No particular statutory notice requirement exists with respect to this type of
lien. Nonetheless, it is good practice for
predecessor counsel to file and serve a
notice of lien at the time of discharge.
The notice apprises all interested
parties, including the client, successor
counsel, and the opposing party, of
predecessor counsel’s claim, and can
serve as a deterrent to attorneys who
otherwise would consider disbursing
the funds at issue.
By contrast, other types of liens do
have notice requirements. For example,
a lien under RCW 60. 40.010( 1)(e) attaches upon a judgment from the time of
filing of the lien notice and the entry in
the execution docket showing the name
of the claimant, the amount claimed, and
the date of filing the notice.
Notably, Washington’s lien statute
addresses fees, but does not expressly
reference advanced but unreimbursed
costs. Washington law remains somewhat unclear on this issue; however, the
Oregon Supreme Court has interpreted
similar statutory language to include
a lien right to recover advanced costs.
Potter v. Schlesser Co., 335 Or. 209,
213, 63 P.3d 1172 (2003). Washington
courts may follow suit.
A lien for both fees and costs also can
arise from a contractual provision. It is
good practice for all attorneys to include
a provision setting out their lien rights
in every client fee agreement.
RPC 1.15A, entitled “Safeguarding
Property,” also affords predecessor
counsel some protection. RPC 1.15A
prohibits a lawyer from using, converting, borrowing or pledging the
property of clients or third persons for
the lawyer’s own use, and requires the
lawyer to hold such property separate from the lawyer’s own property.
Notably, in addition to protecting
clients, the rule applies to the property
of non-clients in a lawyer’s possession
in connection with a representation.
RPC 1.15A(g) provides that “If a lawyer
possesses property in which two or
more persons (one of which may be the
lawyer) claim interests, the lawyer must
JASON W. ANDERSON | LINDA B. CLAPHAM*
MICHAEL B. KING*° | JAMES E. LOBSENZ*°
GREGORY M. MILLER*
OVER 500 CASES ARGUED ON THE MERITS
C: 0 M: 0 Y: 0 K: 100
CM YK COLORS
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°Fellow, American Academy of Appellate Lawyers
*Founding Members, Washington Appellate Lawyers Association