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The Attorneys Lien


THE ATTORNEY'S LIEN. The right of an attorney to a lien on the property or papers of his client for services, costs, and the like, may be: I. A gen eral or retaining lien; and, 2. A particular or charging lien. A general or retaining lien is given an attorney by the common law, and consists in the right to retain the property, money and papers of a client until the costs and charges are satisfied by the client. It de pends upon possession, and cannot be enforced by sale in the absence of a statute permitting it. (Mechem on Agency, Secs. 859-86o.) See Iowa Code, Sec. 215; Dak. Code, Kansas Comp. L. Secs. 468-9.

The general or retaining lien gives the right to re tain money, property, or papers of the client which have come into the attorney's possession. But for the lien to attach, the property or papers must have come into his possession while acting for the client and in his professional capacity. (Hooper v. Welch, 43 Vt. 171.) Formerly the lien was claimed to cover only the costs and charges of the particular case, but now as a rule it is held to cover and secure a general balance due the attorney for services and charges for the client in what ever cause. (McDonald v. Napier, 14 Ga. 89; Cooke v. Thresher, 51 Conn. 105; Hurlbert v. Brigham, 56 Vt. 368.) The lien prevails against attaching creditors, and, cannot be lost by the assignment or bankruptcy of the client. (Weed v. Boutelle, 56 Vt. 570; Ward v. Craig, 87 N. Y. 550.) The Special or charging lien did not exist at the com mon law, but has resulted from rules of the courts seeking to protect the attorney for expenses incurred for the benefit of the client. It consists of the right to charge and enforce upon a judgment secured for the client the expenses, charges and services of the attor ney by whose aid it was secured. Possession is not nec essary or possible in this case, and the right extends to enable the client to get payment direct from the judg ment, either upon motion of the court, out of the funds realized, or by following his remedy as an equitable as signee of the judgment, which he is considered as be ing. (Stratton v. Hussey, 62 Me. 283; Walker v. Floyd, 3o Ga. 237.) The charging lien extends to protect only the costs and expenses incurred in obtaining the judgment, and does not cover a general balance due the attorney for services or charges in other cases. (Mechem on Agen cy, Sec. 87o; in re Wilson, supra; Weed v. Boutelle, supra, Jackson v. Clopton, 66 Ala. 29.) The special charging lien exists by statute, or is en forced by the courts, in a majority of the States. The statutes are not uniform in their provisions, and must be referred to. In some States a lien on the judgment does not exist. (Diehl v. Friester, 37 Ohio St. 473; Lewis v. Kinealy, 2 MO. App. 33.) In the absence of statute giving it earlier effect, the charging lien does not attach until the judgment has been rendered, and a previous settlement between the parties would bar the attorney's right to a lien. (Mechem on Agency, Sec. 871; Coughlin v. N. Y. C. R. R., 71 N. Y. 443.) This lien is upon the judgment alone, unless the statute en larges it, and does not attach to other property of the client gained in the suit. (McCullough v. Flournoy, 69 Ala. 189.) The lien depends upon the law of the State where the judgment is rendered, and not of the State where it may be attempted to be collected, and by comity the courts of one State protect and enforce the lien giv-en by the laws of another State. (Citizens' Natl. Blank v. Culver, 54 N. H. 327.)

client, judgment, charging, attorney and charges