7-108 Attorney's liens. - Nebraska Statutes

7-108. Attorney's liens.An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; and upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party. SourceR.S.1866, c. 3, § 8, p. 15; R.S.1913, § 272; C.S.1922, § 267; C.S.1929, § 7-108; R.S.1943, § 7-108. Annotations1. Attaches2. Does not attach3. Priority4. Destruction5. Intervention6. Notice7. Miscellaneous1. AttachesTo be entitled to an attorney's lien, it is necessary that an attorney-client relationship exists, either express or implied. Hammond v. Nebraska Nat. Gas Co., 209 Neb. 616, 309 N.W.2d 75 (1981).An action to enforce an attorney's charging lien is equitable in nature and will not be tried before a jury. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).Attorney's lien extends to the whole indebtedness covering the general balances due. Anderson v. Lamme, 174 Neb. 398, 118 N.W.2d 339 (1962).Charging lien may be enforced by action in equity. Neighbors & Danielson v. West Nebraska Methodist Hospital, 162 Neb. 816, 77 N.W.2d 667 (1956).An attorney's charging lien is confined to fees and costs due for services rendered in the particular action in which it is sought to enforce the lien. Nicholson v. Albers, 144 Neb. 253, 13 N.W.2d 145 (1944).To the extent of his reasonable charges and disbursements, an attorney is entitled to a lien upon money in his hands belonging to his client. State ex rel. Nebraska State Bar Assn. v. Bachelor, 139 Neb. 253, 297 N.W. 138 (1941).Attorney's lien is confined to fees and costs due for services rendered in particular case in which lien is sought to be enforced. Reynolds v. Warner, 128 Neb. 304, 258 N.W. 462 (1935), 97 A.L.R. 1128 (1935).Lien is valid on full amount of judgment where settlement made while appeal pending. Griggs v. Chicago, R. I. & P. Ry. Co., 104 Neb. 301, 177 N.W. 185 (1920).An attorney has a charging lien upon money in the hands of an adverse party, but an attorney discharged by client before collection of money, although lien is not dissolved, cannot collect money over client's objection. Gordon v. Hennings, 89 Neb. 252, 131 N.W. 228 (1911).An attorney's lien, when filed in a pending action, binds real estate previously attached, and client cannot prevent enforcement of lien by dismissal of action. Zentmire v. Brailey, 89 Neb. 158, 130 N.W. 1047 (1911).Judgment in favor of a prosecutrix in a bastardy proceeding is subject to the lien of her attorney for services in obtaining the judgment, and an assignment of the judgment after filing of attorney's lien does not affect lien and assignee takes subject thereto. Taylor v. Stull, 79 Neb. 295, 112 N.W. 577 (1907).An attorney has lien for his compensation and disbursements on money received in client's behalf, and the right of lien is not affected by the fact that the client is an executor or trustee and the services were rendered and money received on behalf of an estate. Burleigh v. Palmer, 74 Neb. 122, 103 N.W. 1068 (1905).This section, declaratory of common law, gives attorney a retaining lien upon all papers, books, documents and money of client which come into his possession in the course of his professional employment, and a charging lien upon money in the hands of adverse party where notice of existence of claim of lien is given. Cones v. Brooks, 60 Neb. 698, 84 N.W. 85 (1900).Attorney may recover property fraudulently conveyed upon which lien attached. Chamberlain v. Grimes, 42 Neb. 701, 60 N.W. 948 (1894).An attorney has a lien for a general balance upon money in his hands belonging to his client, and until the lien is discharged he is not liable to a prosecution for embezzlement. Van Etten v. State, 24 Neb. 734, 40 N.W. 289 (1888), 1 L.R.A. 669 (1888).Where a judgment debtor, with knowledge of an attorney's lien, pays the judgment direct to the creditor, he cannot evade the payment of amount due attorney for services. Griggs & Ashby v. White, 5 Neb. 467 (1877).An attorney, prosecuting a claim before a county board, has a lien without filing a claim or giving notice thereof, and an assignee of the claim takes subject thereto. Maloney v. Douglas County, 2 Neb. Unof. 396, 89 N.W. 248 (1902).2. Does not attachTo be valid against subsequent purchasers, agreement creating lien on real estate must meet requirements of section 76-211. Marechale v. Burr, 195 Neb. 306, 237 N.W.2d 860 (1976).Property in the hands of a court-appointed receiver is not subject to attorney's lien. Lewis v. Gallemore, 175 Neb. 279, 121 N.W.2d 388 (1963).An attorney has only such lien for services performed as provided by statute and is not entitled to a lien on real estate owned by client. Young v. Card, 145 Neb. 857, 18 N.W.2d 302 (1945).This section does not give a right to a lien upon real estate involved in a foreclosure action. Marshall v. Casteel, 143 Neb. 68, 8 N.W.2d 690 (1943).Attorney, prior to settlement of his claim for services, has a lien only upon the money of client which comes into his hands. State ex rel. Nebraska State Bar Association v. Rein, 141 Neb. 758, 4 N.W.2d 829 (1942).Except as provided by statute, an attorney has no lien for services performed by him. Card v. George, 140 Neb. 426, 299 N.W. 487 (1941).Assistant or associate counsel employed by attorney without client's knowledge or consent is not entitled to lien. Snyder v. Smith, 132 Neb. 504, 272 N.W. 401 (1937).Lien does not attach where attorney fails to comply with statute. Vanderlip v. Barnes, 101 Neb. 573, 163 N.W. 856 (1917); Lavender v. Atkins, 20 Neb. 206, 29 N.W. 467 (1886).Award paid into court in condemnation proceedings for present owners of land is not subject to lien of attorney for former owner. Clay County v. Howard, 95 Neb. 389, 145 N.W. 982 (1914).Attorney for defendant has no lien upon funds in the hands of third party garnished by plaintiff. Phillips v. Hogue, 63 Neb. 192, 88 N.W. 180 (1901).Attorney's lien cannot be enforced where there is nothing to which such lien can attach. Yeiser v. Lowe, 50 Neb. 310, 69 N.W. 847 (1897).Filing of attorney's lien after settlement is completed does not confer any rights in favor of attorney against adverse party. Sheedy v. McMurtry, 44 Neb. 499, 63 N.W. 21 (1895).Attorney's lien cannot be asserted against money appropriated to client by Legislature while money is in the custody of State Treasurer. State ex rel. Sayre v. Moore, 40 Neb. 854, 59 N.W. 755 (1894), 25 L.R.A. 774 (1894).An attorney is not entitled to a lien before judgment upon a cause of action for tort which in case of the death of the parties would not survive. Abbott v. Abbott, 18 Neb. 503, 26 N.W. 361 (1886).Federal court receiver is not "adverse party" within meaning of this section, and money in his hands is not subject to attorney's lien. Culhane v. Anderson, 17 F.2d 559 (8th Cir. 1927).3. PriorityWhere two judgments, arising out of the same transaction, have been obtained by each of two parties against the other, attorney's lien is subordinate to the right of setoff. Dalton State Bank v. Eckert, 135 Neb. 500, 282 N.W. 490 (1938).Lien of attorney for services in procuring judgment will not be allowed to reduce the amount of a setoff if the judgment is sufficient to satisfy both the setoff and the attorney's lien. Stone v. Snell, 86 Neb. 581, 125 N.W. 1108 (1910).Attorney's lien is subject to proper setoff or defense pleaded. Field v. Maxwell, 44 Neb. 900, 63 N.W. 62 (1895).The assignee of a judgment takes it subject to the rights of an attorney who has properly filed a lien. Yates v. Kinney, 33 Neb. 853, 51 N.W. 230 (1892).Lien of attorney upon judgment to the extent of his reasonable fees and disbursements is paramount to any rights of the parties in the suit or to setoff. Rice v. Day, 33 Neb. 204, 49 N.W. 1128 (1891).Vendor's lien is superior to attorney's lien for services rendered vendee. Smith v. Mesarvey, 22 Neb. 756, 36 N.W. 137 (1888).Lien of attorney, upon judgment obtained by him, to the extent of his reasonable fees and disbursements, is paramount to any rights of the parties in the suit or to any setoff. Boyer v. Clark & McCandless, 3 Neb. 161 (1873).Lien of attorneys upon judgment is paramount to any setoff not pleaded. Finney v. Gallop, 2 Neb. Unof. 480, 89 N.W. 276 (1902).Where a degree enjoining collection of judgment and allowing a setoff conditions the injunction on payment into court of a sum more than sufficient to satisfy lien, it is unnecessary to consider relative priorities of setoff and the attorney's lien. Commercial State Bank of Crawfordsville v. Ketchum, 1 Neb. Unof. 454, 96 N.W. 614 (1901).4. DestructionAfter an attorney's lien has attached, a party adverse to the attorney's client cannot, if he has notice thereof, destroy the lien by voluntary settlement made without the consent or knowledge of the attorney. Spethman v. Hofeldt, 141 Neb. 83, 2 N.W.2d 620 (1942).An attorney may have a lien upon the claim of his client in action for personal injuries, and the lien, once attached, cannot be destroyed by voluntary settlement made without knowledge or consent of the attorney. Heinisch v. Travelers Mut. Casualty Co., 135 Neb. 13, 280 N.W. 234 (1938).Attorneys have lien upon judgment for amount agreed which cannot be defeated by recovery of judgment against client by adverse party and attempted setoff thereof. Ward v. Watson, 27 Neb. 768, 44 N.W. 27 (1889).5. InterventionWhere attorney claims lien on money belonging to a minor plaintiff which is subsequently, by agreement of the parties, paid into court, the proper practice is for attorney to file an intervening petition to have the amount and extent of his lien judicially determined. Myers v. Miller, 134 Neb. 824, 279 N.W. 778 (1938), 117 A.L.R. 977 (1938).An attorney may have a lien upon the claim of his client in an action for personal injury prior to judgment, and after settlement has been made with notice of his lien, may intervene as a party plaintiff to establish his lien. Corson v. Lewis, 77 Neb. 449, 114 N.W. 281 (1907).Where parties to divorce action become reconciled, court may dismiss suit and attorney is not entitled to intervene to enforce fees after dismissal. Petersen v. Petersen, 76 Neb. 282, 107 N.W. 391 (1906), 124 A.S.R. 812 (1906).Attorney may appeal in client's name to enforce lien on fund. Counsman v. Modern Woodmen of America, 69 Neb. 710, 96 N.W. 672 (1903), reversed on rehearing, 69 Neb. 713, 98 N.W. 414 (1904).When a judgment to which an attorney's lien has attached is compromised in fraud of the attorney's rights, proper method of procedure is for the attorney to intervene and have amount of his lien determined. Jones v. Duff Grain Co., 69 Neb. 91, 95 N.W. 1 (1903).Attorney having a lien on a judgment may intervene to revive judgment, and filing of petition is sufficient notice of the lien to the judgment debtor. Greek v. McDaniel, 68 Neb. 569, 94 N.W. 518 (1903).Dismissal of suit will not be set aside and cause reinstated to protect attorney's lien where charge of fraud to defeat lien was not established. Kretsinger v. Weber, 43 Neb. 468, 61 N.W. 718 (1895).Attorney may set aside fraudulent dismissal or settlement with notice of lien. Aspinwall v. Sabin, 22 Neb. 73, 34 N.W. 72 (1887), 3 A.S.R. 258 (1887).To entitle an attorney to become a party to an action for the purpose of protecting and enforcing his lien, it must appear that fees are due him for services in that case. Oliver v. Sheeley, 11 Neb. 521, 9 N.W. 689 (1881).After settlement and dismissal of action by client, action may be continued for purpose of protecting and enforcing lien of attorney. Reynolds v. Reynolds, 10 Neb. 574, 7 N.W. 322 (1880).Where attorney has obtained judgment for client and perfected lien, he may enforce it notwithstanding a compromise and settlement made by his client with other party, and court may permit him to intervene to protect his lien. Patrick v. Leach, 17 F. 476 (Cir. Ct, D. Neb. 1881).6. NoticeThat an attorney filed notice of an attorney's lien under this section after discharge by the client does not affect the lien's enforceability; the attorney need not file notice of the lien before discharge. Meister v. Meister, 274 Neb. 705, 742 N.W.2d 746 (2007).The purpose of the notice requirement of this section is to protect innocent persons who have no notice or knowledge that an attorney claims a lien on the judgment. Stover v. County of Lancaster, 271 Neb. 107, 710 N.W.2d 84 (2006).When an attorney has given appropriate notice of an attorney's lien under this section, the lien is perfected and attaches to funds in the hands of the adverse party and belonging to the attorney's client. Stover v. County of Lancaster, 271 Neb. 107, 710 N.W.2d 84 (2006).Although an attorney's lien on funds in the hands of an adverse party is not perfected until notice is given, such notice need not be express or in any specific form. Rather, it need be only understood by the parties that the attorney is entitled to the funds as compensation. Kleager v. Schaneman, 212 Neb. 333, 322 N.W.2d 659 (1982).In order to perfect a lien against assets in the hands of an adverse party, an attorney must give to the adverse party notice of the existence of the claim and that it will be asserted. Such notice need not be in any specific form. Barber v. Barber, 207 Neb. 101, 296 N.W.2d 463 (1980).Notice of attorney's lien is not required to be in any specific form or to be given in any particular manner. Tuttle v. Wyman, 149 Neb. 769, 32 N.W.2d 742 (1948).Attorney has lien upon money in the hands of adverse party from time of giving notice of lien to that party. In re Estate of Linch, 139 Neb. 761, 298 N.W. 697 (1941).An attorney is entitled to a lien upon money in the hands of an adverse party only from the time of giving notice to that party. In re Estate of Alexander, 133 Neb. 218, 274 N.W. 551 (1937).Notice of lien filed with papers is good, and binds adverse party. Hoyt v. C., R. I. & P. Ry. Co., 88 Neb. 161, 129 N.W. 292 (1911).Claim in suit on insurance policy to recover attorney's fees as part of the costs is not notice of claim of attorney's lien. Cobbey v. Dorland, 50 Neb. 373, 69 N.W. 951 (1897).In order to render an adverse party liable to a lien for services of attorney, claim of lien must be filed with the papers or notice given, and mere knowledge of existence of contingent fee agreement is not notice. Elliott v. Atkins, 26 Neb. 403, 42 N.W. 403 (1889).Actual notice to adverse party is sufficient. Sayre v. Thompson, 18 Neb. 33, 24 N.W. 383 (1885).Attorney has no lien on judgment obtained by him in favor of his client which he can enforce against a third party, and to secure a lien he must give personal notice in writing. Patrick v. Leach, 12 F. 661 (Cir. Ct., D. Neb. 1881).7. MiscellaneousUnder this section, money in the hands of a court-appointed receiver is not in the hands of an adverse party. Holste v. Burlington Northern R.R. Co., 256 Neb. 713, 592 N.W.2d 894 (1999).