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June 4, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge



By a "Notice of Attorney's Lien" dated March 26, 2003, attorney Leonard N. Flamm claims a lien in the amount of $9,450 for his representation of plaintiffs in this action seeking a judgment for unpaid wages. Flamm was attorney of record beginning with the filing of the complaint on January 3, 2002. Upon his motion, a default judgment was entered on August 12, 2002 in the amount of $66,265.29 against several defendants. The case proceeded briefly with respect to the remaining defendant, Charles Bobmanual, until the case was dismissed against that defendant on February 13, 2003. The Clerk closed the case on the same date. Flamm was plaintiffs' sole attorney for this entire period.

The day the case was closed, the plaintiffs wrote to the Court seeking permission to proceed pro se in collecting on the judgment. That application was granted by memorandum endorsement on February 26, 2003. The attorney's lien was served on the plaintiffs on or after March 26, 2003.

Plaintiffs have now moved pro se to vacate the notice of lien. Their motion asserts some complaints regarding Flamm's prosecution of the matter but, more significantly, contends that they are entitled to vacate the lien because Flamm failed to collect on the judgment. Flamm has opposed the motion.


To determine the parties' respective rights, the first question that must be resolved is the nature of Flamm's lien. Under New York law, there are three distinct methods for an attorney to obtain recovery based on legal services provided. First, the attorney may claim a "retaining" lien on a client's file, a remedy that is not at issue in this case. Second, an attorney may claim a charging lien, which is an attachment to the specific funds that constitute the client's recovery. Finally, an attorney may begin a plenary action in quantum meruit, a cause of action that "can be exercised by the attorney against all of the former client's assets" — not merely against the recovery obtained from a defendant. See, e.g., Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 A.D.2d 183, 186-89 (1st Dep't 2002); Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 218-219 (1st Dep't 1997). While Flamm occasionally uses the term quantum meruit in his papers, he in fact has not sought recovery against the plaintiffs' assets independent of any collection on the judgment. Instead, he seeks only to obtain a charging lien against any amounts the plaintiffs may recover as a result of their own collection efforts. Thus, Flamm's claimed lien is a charging lien.

The charging lien is codified in New York Judiciary Law § 475 and a dispute relating to such a lien is cognizable in federal court. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 448-49 (2d Cir. 1998). Section 475 provides:

From the commencement of an action . . . the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order in his client's favor, and the proceeds thereof in whatever hands they may come . . . The court upon the petition of the client or attorney may determine and enforce the lien.
"`The statute is remedial in character, and hence should be construed liberally in aid of the object sought by the legislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action.'" Itar-Tass, 140 F.3d at 450 (quoting Fischer-Hansen v. Brooklyn Heights R. Co., 173 N.Y. 492, 499 (1903)).

In their motion papers, the parties make arguments regarding whether Flamm resigned or whether the plaintiffs discharged him and — if discharged — whether the plaintiffs discharged him for cause. While plaintiffs have made some complaints about Flamm's representation, plaintiffs' main complaint is that Flamm has refused to collect on the judgment.

Had Flamm resigned or been discharged prior to the entry of a final judgment, plaintiffs' allegations would be of some significance because "a charging lien is waived by an attorney who without just cause neglects or refuses to proceed with the prosecution of the case." Klein v. Eubank, 87 N.Y.2d 459, 463 (1996) (citations and emphasis omitted); accord Shalom Toy, Inc. v. Each and Every One of the Members of the New York Property Ins. Underwriting Assoc., 239 A.D.2d 196, 198 (1st Dep't 1997) (right to compensation waived where the representation ends as a consequence of "unjustified abandonment by the attorney") (citing Klein, 87 N.Y.2d at 464). In addition, an attorney discharged for cause may not claim a charging lien. See, e.g., Shalom Toy, Inc., 239 A.D.2d at 198.

This issue is of no moment in this particular case, however, because the services for which Flamm was retained were completed prior to his resignation or discharge. The retainer agreement required Flamm only to "prepare, present and prosecute" the case. See Retainer Agreement, dated November 16, 2001 (reproduced in Notice of Motion to Inter-alia Void Notice of Claim of Lien, dated April 2003, Ex. 3), ¶ 1. The prosecution of the case is at an end, however, as a final judgment has been entered. The retainer agreement did not obligate Flamm to collect on any judgment obtained. Thus, the circumstances of Flamm's departure are irrelevant because Flamm's obligation to the plaintiffs had already ceased at the time of any resignation or discharge. As a result, section 475 applies and Flamm is entitled to a charging lien.

As for the amount of Flamm's lien, the retainer agreement entitles Flamm to a lien of 33-1/3% against any monies collected from the defendants. Id., ΒΆΒΆ 2, 7. Flamm seeks a lien of only $9,450 (less than one third of the judgment), ...

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