sunEthics

Attorney's charging lien filed after dismissal of underlying case was untimely and thus unenforceable.  [Added 7/19/10]

    Attorney Elam represented Naftzger and her husband on a contingent fee basis in a premises liability action.  The clients replaced Elam with another lawyer.  The case settled and a dismissal with prejudice was entered on April 6, 2009.  On April 16 attorney Elam "filed a petition in the same action seeking to enforce a charging lien for $12,000 in attorney's fees for work he performed on Naftzger's case prior to his discharge.  Naftzger objected to the fee request and argued that the trial court no longer had jurisdiction to award fees because the underlying case had been dismissed."  The trial court, however, ruled that Elam was entitled to enforcement of his charging lien.  Naftzger appealed.

    The Second DCA reversed.  Timely notice is one requirement when a lawyer wishes to enforce a charging lien for fees allegedly owed.  See Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).  Therefore, "notice of the charging lien must be filed or the lien pursued in the action before entry of a final judgment or dismissal of the case.  Weiland v. Weiland, 814 So.2d 1252, 1253 (Fla. 2d DCA 2002); Levine v. Gonzalez, 901 So.2d 969, 974 (Fla. 4th DCA 2005); Hannah v. Elder, 545 So.2d 503, 504 (Fla. 4th DCA 1989)."  The court concluded:  "Attorney Elam did not meet the timely notice requirement because he did not file a notice of charging lien or pursue a lien in the pending premises liability action before the trial court entered its order dismissing the action pursuant to the stipulation for dismissal.  Because attorney Elam did not comply with the timely notice requirement for a charging lien, the charging lien was not perfected and the trial court was without jurisdiction to enforce it."  Naftzger v. Elam, __ So.3d ___ (Fla. 2d DCA, No. 2D09-2997, 7/16/2010).

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