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MARTENS v. HADLEY MEM. HOSP.

May 25, 1990

VERNON E. MARTENS, M.D., Plaintiff,
v.
HADLEY MEMORIAL HOSPITAL, Defendant


Aubrey E. Robinson, Jr., Chief United States District Judge.


The opinion of the court was delivered by: ROBINSON

AUBREY E. ROBINSON, JR., CHIEF UNITED STATES DISTRICT JUDGE

 BACKGROUND

 On March 12, 1990, this Court heard oral argument on motions for temporary restraining order and preliminary injunction filed by movant Christian Camenisch attorney for the plaintiff in the above case. Both motions were denied. Camenisch also sought to establish and enforce an attorney's lien prior to the filing of a stipulated dismissal by the parties. *fn1"

 The Court ordered the parties to file briefs on the question whether the issue of the attorney's lien is properly raised within the underlying action and what effect, if any, the dismissal by stipulation would have on this Court's power to hear the issues presented by the current dispute in this matter.

 The Movant asserts that as counsel of record and lead counsel in the above case, in which judgment and recovery have been obtained, he has a presently enforceable interest within in the cause of action in the nature of a charging lien arising from the contingency fee arrangement.

 This Court finds that there is sufficient basis to conclude that a contingency fee arrangement was established. Further, that the case law supports a finding that this Court has jurisdiction to hear the attorney's lien issue.

 A. Establishing an Attorney's Lien

 The "Agreement" between the parties clearly called for inter alia, the "client and attorney [to] divide any recovery from Hadley Hospital. . . ." Agreement at para. 5. While there is no D.C. statute setting out an attorney's lien, D.C. case law has long recognized the validity of an attorneys' charging lien in proceeds obtained through judgment and recovery where the client and the attorney understood that the attorney would be paid out of the case's proceeds. Kaushiva v. Hutter, 454 A.2d 1373 (D.C. App. 1983); accord Falcone v. Hall, 98 U.S. App. D.C. 363, 235 F.2d 860 (D.C. Cir. 1956); Lyman v. Campbell, 87 U.S. App. D.C. 44, 182 F.2d 700 (D.C. Cir. 1950); Pink v. Farrington, 67 App. D.C. 314, 92 F.2d 465 (D.C. Cir.), cert. denied, 302 U.S. 741, 82 L. Ed. 572, 58 S. Ct. 143 (1940).

 Further, this Circuit has held that a charging lien arises out of the underlying action and relates back to the inception of the action. Friedman v. Harris, 81 U.S. App. D.C. 317, 158 F.2d 187 (D.C. Cir. 1946); accord, Continental Casualty Co. v. Kelly, 70 App. D.C. 320, 106 F.2d 841 (D.C. Cir. 1939).

 Our Circuit has recognized that:

 
An attorney retained in a true contingency fee basis has "an interest in the cause of action." This interest is treated for purposes of recognition as an equitable or contract lien . . . . We think that in a proper case an attorney may apply to the court in his own name, assert his interest and lien, and secure enforcement, to the extent necessary to satisfy a valid claim for compensation, of a judgment favorable to his client. If the attorney has an interest in the cause of action he has an interest in the judgment into which the cause of action merges. If he has agreed to look only to the ultimate recovery for his compensation and has obtained a judgment establishing his client's right to recover . . . he should have the right to proceed in his own name to realize on the judgment upon which he has an equitable lien.

 Falcone v. Hall, 98 U.S. App. D.C. 363, 235 F.2d 860, 862 (D.C. Cir. 1956) (quoting Kellogg v. Winchell, 51 App. D.C. 17, 273 F. 745 (D.C.Cir.1921)); cf. Greenberg v. Sher, 567 A.2d 882 (D.C. App. 1989) (recovery of full contingency fee most likely where attorney has, before discharge, fully or substantially ...


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