Fourth District, Division 3 Sides With Reasoning in California State Bar Formal Opinion.
In Fletcher v. Davis, 33 Cal.4th 61, 71-72 (2004) [one of our Leading Cases], the California Supreme Court held that an attorney retained on an hourly basis secured by a charging lien has acquired an interest adverse to the client, meaning that the attorney must comply with the requirements of rule 3-300 of the Rules of Professional Conduct (which, in turn, requires notification of the conflict in writing, requires advising that the client should seek advice from an independent attorney, and requires client’s consent to the lien in writing). Although coming close, no appellate court had addressed whether the Fletcher requirements apply to contingency fee retentions with charging liens. That is, until now.
The Fourth District, Division 3, in Plummer v. Day/Eisenberg, LLP, Case No. G041512 (4th Dist., Div. 3 Apr. 26, 2010) (certified for publication), a 3-0 decision authored by Justice Ikola, resolved this open question. Based on the California State Bar’s Formal Opinion No. 2006-170, the appellate panel decided that a contingency fee agreement with a charging lien is not subject to the Fletcher requirements. The charging lien in the case before the appellate court did not have to comply with rule 3-300 dictates.
CHARGE !
