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Massachusetts Agencies

Attorney's Lien

Liens, Special

It is provided in G.L.c. 221, §50 that from and after the authorized commencement of an action in a court or before a board or commission the attorney who appears for the client in such proceeding shall have a "lien" for his reasonable fees and expenses "upon his client's cause of action, counterclaim or claim, upon the judgment, decree or other order in his client's favor entered or made in such proceeding, and upon the proceeds derived therefrom." The "lien" is upon the "cause of action" or the "proceeds derived therefrom" and the court in which the proceeding is pending (or if before a board or commission, the superior court) "may determine and enforce the lien." It seems clear that the lien is not on real estate (or any other property of the client's, for that matter), but rather upon the cause of action (an assignment, if you will, of the right to collect the judgment or a part thereof) or, if the client has already realized the money due on the judgment, "upon the proceeds derived" from that cause of action. At best, the "lien" attaches to money ("proceeds") and does not have any effect upon the title to the real estate or the security (mortgage) on it. Even if the "lien" exists here, it is on money, which the attorney would be free to pursue and have the court "determine and enforce." This is an important point. It is the court that "enforces" the lien — whether it be on the cause of action or on the proceeds derived therefrom — so even if the "lien" applies here[1] it is incumbent upon the attorney to ask the court to enforce it, i.e., bring before the court the party who at the time of enforcement holds the proceeds (a garnishment, if you will, not on any money but on the money "derived from" the judgment).

If the attorney were to try to enforce the lien against the real estate or somehow claim that the lien affected the insured mortgage, I think Stewart would be required to stand behind its policy and defend, but the action could be easily dismissed for the reasons stated.

1 It may not. The funds are not proceeds realized from the enforcement of a judgment or decree but rather due to the sale of real estate, albeit in connection with a judicial order requiring the sale.