Ark. Code Ann. § 16-22-304 (2020)

Research References

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2003 Arkansas General Assembly, Practice, Procedure, and Courts, Attorneys Liens, 26 U. Ark. Little Rock L. Rev. 448.

Annual Survey of Case Law: Contract Law, 29 U. Ark. Little Rock L. Rev. 845.

Case Notes

Constitutionality.

Former statute did not unconstitutionally deprive one of the right of trial by jury, since constitutional right of trial by jury applies only to rights that existed at common law before the adoption of the constitution, and does not apply to new rights created by the legislature since the adoption of the constitution. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

In General.

Former similar statute provided the only method by which an attorney's lien could be enforced. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

An attorney's lien which has attached to the proceeds of litigation follows the property when it is conveyed to others. Nash v. Estate of Swaffar, 336 Ark. 235, 983 S.W.2d 942 (1999).

Construction.

Former statute was remedial in character and was to be liberally construed. Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958); Rush v. Metrocentre Improv. Dist. No. 1, 686 F.2d 625 (8th Cir. 1982) (preceding decisions under prior law).

Attorney that had been retained by an employee to represent the employee in a workers' compensation case, but then had been told by the employee that he wanted to end the case, was entitled to assert a lien on a final settlement that was reached after the employee hired a second lawyer instead of abandoning the case; the fact that the attorney had been involved in the case before there was any controversy did not preclude the attorney from imposing a lien for fees. Wren v. DeQueen Sand & Gravel Co., 87 Ark. App. 212, 189 S.W.3d 522 (2004).

Attorneys are entitled to obtain a lien for services based on agreements with their clients and, while an attorney's lien may in some instances be enforceable against another attorney, such a lien is not created where there is no attorney-client relationship; thus, a former employer was not entitled to such a lien on a settlement obtained by a former employee in a class action suit. Morgan v. Chandler, 367 Ark. 430, 241 S.W.3d 224 (2006).

Purpose.

Purpose of former statute was to establish a lien for attorney's fees, after specified notice to adverse parties, which attached to proceeds of any settlement, verdict, report, decision, judgment, or final order. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

The 1989 amendments to the Attorney's Lien Law expressed a clear legislative intent that attorneys be allowed to rely on the contracts they make with their clients, regardless of whether the contract is for a contingent fee or otherwise. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Applicability.

The attorney's lien statutes, § 16-22-301 through this section, do not apply to cases in which an attorney is terminated for cause. Williams v. Ashley, 319 Ark. 197, 890 S.W.2d 260 (1995).

Court properly denied attorney a lien on client's real property because the case did not come within the province of the attorney's lien statute where the attorney sought to extend a lien over property that the client already owned and was not the subject of the litigation; this section is limited to cases where there has been an actual recovery of money or property. Northwest Ark. Recovery, Inc. v. Davis, 89 Ark. App. 62, 200 S.W.3d 481 (2004).

Appeal.

Where, upon appeal from suit in which appellants intervened, appellants filed an affidavit to the effect that they had not authorized an appeal, appeal was dismissed without prejudice to rights of counsel to pursue any action or lien which he may have had for services. Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956) (decision under prior law).

Collection of Fee.

The right of the attorney to collect his fee from his client's adversary was dependent upon former statute and he had to bring his case in conformity therewith. Missouri Pac. Transp. Co. v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940) (decision under prior law).

Where client settles claim without attorney's knowledge, attorney can recover fee by separate action in the court in which his client's action was instituted and is not limited to file a motion in the original suit. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

Because it was “patently clear” that the attorney's Pulaski County suit over disputed contingency fees from a former client's settlement with the insurer had no chance of success and was a collateral attack, where the settlement was entered in Cleburne County, and the proper venue was in Cleburne County, and because the attorney attempted to manufacture venue by claiming unwarranted costs and expenses, the trial court did not abuse its discretion in imposing sanctions against the attorney under Ark. R. Civ. P. 11. Pomtree v. State Farm Mut. Auto. Ins. Co., 353 Ark. 657, 121 S.W.3d 147 (2003).

—Lien.

Probate court had jurisdiction to enforce attorney's lien pending in that court for case tried before that court. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963) (decision under prior law).

If a proceeding to collect attorney's fees is against the client, the amount of the fee is to be governed by their agreement and, to ensure payment of that fee, the attorney is entitled to a lien upon the client's cause of action which attaches to any settlement recovered by the client; however, when the attorney proceeds against the other party, former statute contained no provision for a lien upon the cause of action which might attach to a settlement recovered by the other party and the attorney was entitled only to a reasonable fee or compensation. Jarboe v. Hicks, 281 Ark. 21, 660 S.W.2d 930 (1983); Cato v. Arkansas Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985) (preceding decisions under prior law).

Where attorney filed suit for accounting and aided in preparing divorce suit, which was dismissed, and there was no showing that client received tangible assets in return for the dismissal of her claim, no useful purpose would be served by reopening suit for purposes of enforcing attorney's lien. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984) (decision under prior law).

Where the client did not receive a verdict in his favor in the interpleader action, and did not receive any portion of the interpled fund, no judgment existed on which his attorney could attach a lien. Birdsong Cabinet Shop, Inc. v. Bland, 307 Ark. 149, 817 S.W.2d 886 (1991).

The circuit court erred in making the particular declaration allowing attorney a 20% interest in client's potential recovery against the disputed trust and estate. The circuit court should have considered a declaration of whether or not the attorney was entitled to a fee based on quantum meruit. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Contingency Fee.

Where legal services had been fully performed as contemplated in a contingency fee contract, attorney was entitled to the fee fixed in the contract and to the lien granted by former statute. Former statute did not authorize an attorney to recover full contingency fee under contract where contract had not been fully performed, and attorney was limited to recovery of a reasonable fee for his services. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law). But see § 16-22-301.

Expenses.

Where client agreed to pay attorney one-third of amount recovered and, out of his share, any expenses properly incurred, expenses properly incurred were a part of the fee and within the purview of former statute. Moreover, compensation of assisting attorney should have been considered as one of expenses properly incurred and embraced in the attorney's lien. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

The lien for an attorney's fee also includes the expenses properly incurred by the attorney in prosecuting the suit. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958); Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978), aff'd, Arkansas La. Gas Co. v. Luster, 604 F.2d 31 (8th Cir. 1979) (preceding decisions under prior law).

Interpleader.

Attorneys who contracted on a contingent fee basis to bring action against insurance companies for fire loss were entitled to fee based on total recovery even though a percentage of the amount would actually be paid to mortgagee in interpleader action, and attorneys were entitled to lien for that amount on mortgagor's portion of recovery. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Jurisdiction.

The lien must be enforced in the trial court. May v. Ausley, 103 Ark. 306, 146 S.W. 139 (1912) (decision under prior law).

Probate court had jurisdiction to enforce attorney's lien pending in that court for case tried before that court. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963) (decision under prior law).

Even though petitioner argued that venue was improper under § 16-60-116(a) because he neither resided nor was summoned in Crawford County, but because the complaint was one quasi in rem to determine the rights to the money in the registry of the Crawford County Circuit Court and, specifically, his rights to attorney fees, Crawford County was the proper venue for hearing the complaint in intervention under subsection (d) of this section. Milligan v. Circuit Court, 331 Ark. 439, 959 S.W.2d 747 (1998).

Notice.

In suit to recover fee from adverse party, attorney should allege and prove that defendant had notice of his interest in the suit. Kansas City, F.S. & M.R. Co. v. Joslin, 74 Ark. 551, 86 S.W. 435 (1905); Rachels & Robinson v. Doniphan Lumber Co., 98 Ark. 529, 136 S.W. 658 (1911) (preceding decisions under prior law).

A letter to the adverse party from the attorney, even though not signed by his client, that he was impressing a lien constituted substantial compliance with former statute. Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967) (decision under prior law).

Attorney not entitled to relief under this section where attorney failed to comply with this section's requirement of written notice signed by the client. Childs v. Mid-Century Ins. Co., 55 Ark. App. 168, 934 S.W.2d 533 (1996).

Chancellor erred in finding that the attorney's lien could not be enforced upon the check the client gave her boyfriend based on a lack of notice to the boyfriend; once the attorney filed the petition for citation of contempt on behalf of the client, an attorney's lien attached to any judgment the client received as a result of the attorney's work. Froelich v. Graham, 349 Ark. 692, 80 S.W.3d 360 (2002).

Purpose of this section was to ensure that the adverse party was aware of the attorney's intention to claim a lien on the proceeds of the litigation before the settlement was paid; the record showed that the adverse parties' attorney sent a letter to the law firm and the client's new attorney acknowledging the law firm's claim such that there was no question that the adverse parties had actual notice of the asserted lien before any settlement money was paid to the client. Mack v. Brazil, Adlong & Winningham, PLC, 357 Ark. 1, 159 S.W.3d 291 (2004).

Priority.

Attorney's lien on judgment which was garnished by third party was held superior to garnishment, even though service of garnishment antedated attorney's petition to establish lien, because the lien attached and dated from the filing of the complaint and the issuance of summons thereon. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

In action by mortgagor against insurance companies for fire loss, attorney's lien attached when complaints were filed and summons issued thereon and were superior to liens of mortgagor's creditors, including lien of judgment creditor under § 16-66-112, where judgment creditor had not obtained execution or garnishment against personal property or delivery of the writ to the officer in the proper county. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Mortgagee's right to the proceeds of fire policy containing open loss payable and standard mortgage clauses was superior to lien of attorneys who represented mortgagor in action to recover on policy. Consolidated Underwriters of S.C. Ins. Co. v. Bradshaw, 136 F. Supp. 395 (W.D. Ark. 1955) (decision under prior law).

Circuit court properly granted priority to an attorney-fee lien in the sales proceeds of 46 acres where the validity of the attorney's lien, her right of foreclosure, and her right to one-third of the sales proceeds from the 46 acres had been established by the law of the case. Howard v. Adams, 2016 Ark. App. 222, 490 S.W.3d 678 (2016).

Procedure for Enforcement.

Where client settles claim without attorney's knowledge, attorney can recover fee by separate action in the court in which his client's action was instituted and is not limited to file a motion in the original suit. Missouri Pac. Transp. Co. v. McDonald, 206 Ark. 270, 174 S.W.2d 944 (1943) (decision under prior law).

The procedure for enforcing an attorney's lien may be by motion in court where action is pending, or may be by separate suit in that court. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Where suit began as a contract action in which the circuit court had proper subject matter jurisdiction, after the suit was amended to include a request for declaratory relief, the suit was still properly before the circuit court, as §§ 16-111-103 and 16-111-104 permit courts of record within their respective jurisdictions to declare relief in cases involving the interpretation of contracts. Lancaster v. Fitzhugh, 310 Ark. 590, 839 S.W.2d 192 (1992).

Property Subject to Lien.

A solicitor has no lien upon his client's land for services rendered in removing a cloud from his title to it. Hershy v. Du Val, 47 Ark. 86, 14 S.W. 469 (1885) (decision under prior law).

Attorney is not entitled to lien on land allotted to client in partition suit. Gibson v. Buckner, 65 Ark. 84, 44 S.W. 1034 (1898); Weatherford v. Hill, 68 Ark. 80, 56 S.W. 448 (1900); Houpt v. Bohl, 71 Ark. 330, 75 S.W. 470 (1903) (preceding decisions under prior law).

Former statute did not give the attorney any interest in, or control over, the cause of action; he had a lien only on the fruits of the litigation. St. Louis, Iron Mountain & S. Ry. v. Blaylock, 117 Ark. 504, 175 S.W. 1170 (1915) (decision under prior law).

An interest of one of the parties in certain oil leases was not subject to attorney's lien. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Reasonable Fees.

Although former statute made no distinction between a contingency fee and a fee based on other criteria, it did not require that the fee should be anything other than reasonable. Henry, Walden & Davis v. Goodman, 294 Ark. 25, 741 S.W.2d 233 (1987), superseded by statute as stated in, Salmon v. Atkinson, 355 Ark. 325, 137 S.W.3d 383 (2003) (decision under prior law).

Once it was determined that a law firm was discharged by its client for cause, the firm's lien under this section, the Arkansas' attorney-lien statute, was determined on a quantum-meruit basis, despite a contingent-fee contract between the firm and the client, to provide compensation for the reasonable value of the firm's services. Harrill & Sutter, PLLC v. Kosin, 2011 Ark. 51, 378 S.W.3d 135 (2011).

Reopening Suit.

Where attorney filed suit for accounting and aided in preparing divorce suit, which was dismissed, and there was no showing that client received tangible assets in return for the dismissal of her claim, no useful purpose would be served by reopening suit for purposes of enforcing attorney's lien. Myers v. Muuss, 281 Ark. 188, 662 S.W.2d 805 (1984).

Settlement.

The right of an attorney to his fees is unaffected by a release executed by his client, relieving the defendant from liability. American Nat'l Ins. Co. v. Mooney, 111 Ark. 514, 164 S.W. 276 (1914) (decision under prior law).

Attempted compromise by one of distributees of proceeds of judicial sale, absent authority by other distributees, did not bind other distributees or defeat the contingent fee interest of their attorney. Holland v. Wait, 193 Ark. 1179, 102 S.W.2d 550 (1937) (decision under prior law).

Where an attorney, employed by finance company to collect balance due or repossess car from delinquent purchaser, called on defendant and received his promise to pay balance or deliver car on following day, and the attorney neither filed suit nor gave defendant a written notice by registered mail, and defendant made compromise settlement directly with finance company, the attorney had no right of action or lien against defendant for attorneys fees under former statute. Whetstone v. Daniel, 217 Ark. 899, 233 S.W.2d 625 (1950) (decision under prior law).

Where debtor of attorney's client settled with client without attorney's knowledge after registered letter had been sent to debtor informing him that client had instructed attorney to file suit on the account, attorney acquired statutory lien and was entitled to a reasonable fee from debtor for his services. Whetstone v. Travis, 223 Ark. 856, 269 S.W.2d 320 (1954) (decision under prior law).

A client's action in settling or dismissing his claim or cause of action without consulting his attorney could also entitle the latter to a lien for his fee under former statute. Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956) (decision under prior law).

A client could dismiss or settle his cause of action without consulting his attorney, but if he does so, the attorney had a lien for his fee under former statute. Monsanto Chem. Co. v. Grandbush, 162 F. Supp. 797 (W.D. Ark. 1958) (decision under prior law).

Where a general contractor and an insurance company resolved claims between them by entering into a comprehensive settlement agreement which decreased the monetary obligations owed by the general contractor to the insurer, the agreement was a settlement in the general contractor's favor within the meaning of former statute and, therefore, the general contractor's attorney had a valid and enforceable lien which had attached to the settlement sum. Rush v. Metrocentre Improv. Dist. No. 1, 686 F.2d 625 (8th Cir. 1982) (decision under prior law).

By the language of the attorney's lien statute, the lien applies to “any settlement”; thus, where a law firm, that had agreed to represent a client for a contingent fee and later was fired, claimed an attorney's lien on behalf of its former client against any recovery, but entered into an express contract with the client's new attorney for a guaranteed attorney's lien for a specific dollar amount, the law firm bargained away its right to any future recovery by substituting a liquidated sum in exchange for surrendering its right to a percentage of any subsequent recovery. Haskins Law Firm v. American Nat'l Property & Cas. Co., 304 Ark. 684, 804 S.W.2d 714 (1991).

Time of Attachment.

Lien attaches when summons is issued. Union Sawmill Co. v. Pace, Campbell & Davis, 163 Ark. 598, 260 S.W. 428 (1924) (decision under prior law).

Attorney employed under written contract had a lien on client's cause of action from the date the complaint was filed and summons issued thereon. McNeill v. Percy, 201 Ark. 454, 145 S.W.2d 32 (1940) (decision under prior law).

In an action under former statute against an insurance company, the cause of action attached upon the happening of total and permanent disability, although not recoverable until due proof of disability was made, and the fact that notice was given prior to the furnishing of proof of disability would not defeat the lien. Metropolitan Life Ins. Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967) (decision under prior law).

When an attorney fails to give the required written notice to the adverse party, a lien does not attach until summons, issued on the complaint, is placed in the hands of the proper sheriff. Home Ins. Co. v. Jones, 253 Ark. 218, 485 S.W.2d 190 (1972) (decision under prior law).

Cited: Teasley v. Hermann Cos., 92 Ark. App. 40, 211 S.W.3d 40 (2005).