2012-1.

CourtAlaska
Alaska Ethics Opinions 2012. 2012-1. ALASKA BAR ASSOCIATIONETHICS OPINION NO. 2012-1May a lawyer record an attorney's lien (AS 34.35.430) against a client's real propertyQuestion Presented Under the Alaska Rules of Professional Conduct, may a lawyer record a statutory attorney lien? Facts A client is represented by a lawyer in a divorce action. As a result of a fee dispute, the attorney is terminated. Following termination, the attorney records an attorney lien pursuant to AS 34.35.430. After the completion of the divorce, the recorded lien is discovered several years later when the client seeks to sell real property unrelated to the divorce. Conclusion Recording a lien for attorneys' fees pursuant to AS 34.35.430 violates Alaska Rules of Professional Conduct 1.5, 1.8 and 1.16. Discussion Alaska Statute 34.35.430 sets out the procedure for asserting an attorney lien for fees against client papers or money in possession of the lawyer or an adverse party. Unlike other lien statutes of Chapter 35, AS 34.35.430 does not reference recording. One court has specifically held that AS 34.35.430 does not authorize the recording of an attorney lien.(fn1) In re Rodvik, 367 B. R. 148 (D.AK 2007). For a general discussion of the procedure for asserting, perfecting, and enforcing a statutory attorney's lien, the reader is referred to Sheehan v. Estate of Gamberg, 677 P.2d 254 (Alaska 1984). See also Miller v. Paul, 615 P. 2d 615 (Alaska 1980)(statutory lien rights must be balanced against harm to client). Even if recording a lien was statutorily permissible, it is our conclusion that doing so would violate the Alaska Rules of Professional Conduct as further discussed. A lien that has been recorded remains recorded indefinitely. This potentially harms the client in a number of ways. For example, the recorded lien adversely affects the title of all real property owned by the clients, whether the subject of litigation or not. Because the recorded lien may only become known at the time that the former client is seeking to sell real property, it circumvents the principle that all claimed attorney fees are always subject to review by a court or Fee Arbitration Panel. See Ethics Opinion 2009-1. Recording the lien also creates the potential for a lawyer overreaching with respect to fee collection at a time when there is the greatest pressure on the client...

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