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  • Writer's pictureSarah Morris Ocampo

Attorney Liens in California vs. Attorney Liens in Nevada

Attorney liens are completely different in California than they are in Nevada. In Nevada and most states, attorney liens are generally creatures of statute. In California, they are entirely governed by contract with case law and ethical rules providing some limits, generally in a client’s favor. See e.g. Carroll v. Interstate Brands Corp., 99 Cal. App. 4th 1168, 1172, 121 Cal. Rptr. 2d 532, 534 (2002).

In California, if a contract does not provide for an attorney lien, then no attorney lien may be asserted. Id. However, an attorney lien may be implied by the contract and does not necessarily need to be expressed. Id. at 1174. To imply a lien, the contract must generally state that the attorney may look to the recovery from the matter for payment of his fee. Cetenko v. United Cal. Bank, 30 Cal. 3d 528, 531, 179 Cal. Rptr. 902, 904, 638 P.2d 1299, 1301 (1982).

California does not have any provisions in general to allow an attorney lien to attach to real property per se. If an attorney lien were reduced to a judgment, it could be enforced like any judgment and could attach to non-exempt real property. However, in California that requires a separate action in which the attorney sues the client. Nevada allows an attorney’s lien to be adjudicated as part of the underlying action, but California specifically requires an action between the attorney and the client to do so, normally with the attorney suing to enforce. Carroll v. Interstate Brands Corp., 99 Cal. App. 4th 1168, 1173, 121 Cal. Rptr. 2d 532, 536 (2002) (under some circumstances the judge in the underlying action may expunge the notice of attorney’s lien, but that does not affect the attorney lien itself either way). 

California does allow a notice of attorney’s lien to be filed into the underlying action though. Valenta v. Regents of Univ. of Cal., 231 Cal. App. 3d 1465, 1470, 282 Cal. Rptr. 812, 815 (1991). Such notice has no impact on the validity of the lien and little legal impact at all. However, it does place subsequent attorneys on notice, and they are likely to at least reach out and explore the circumstances before distributing proceeds to the client. Read more on the subject here.  

While California does allow charging liens, they take a dim view of retaining liens, which allow the attorney to withhold papers. Acad. of Cal. Optometrists, Inc. v. Superior Court, 51 Cal. App. 3d 999, 1006, 124 Cal. Rptr. 668, 672 (1975). In California, retaining liens are forbidden as a matter of public policy unless both permitted by contract and the material being retained possesses an independent monetary value. Id. Both elements must be met to try to assert a retaining lien in California.

As always, if you have additional questions, you should consult qualified counsel in your jurisdiction.

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