by Glenn E. Bradford1 and Tammy N. Etem2
In the state of Missouri, two types of attorneys' liens are created by statute.6 Section 484.130, RSMo 1994, provides that an attorney's lien attaches to a "client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in the client's favor and the proceeds thereof in whosoever hands they may come. . . ." The statute provides that the lien "cannot be affected by any settlement between the parties before or after judgment."7 Section 484.140, RSMo 1994, provides for an attorney's lien based on a contract between the attorney and the client, regardless of whether a claim or counterclaim is actually filed in court. However, the attorney must perfect the lien by mailing a notice of the lien to the proposed defendant or defendants. The written notice must contain the contingent fee percentage agreed upon between the attorney and the claimant. The lien operates from the date of service of notice as a lien upon the proceeds of any settlement. Experienced claimants' attorneys recommend that written notice of the attorney's lien be provided to the tortfeasor, the tortfeasor's attorney, and the tortfeasor's insurance carrier, if known.
An issue often arises where another entity, such as a health care provider, insurance company, or social service provider also maintains an interest in the proceeds of recovery. As a general rule, an attorney's lien takes precedence over other statutory liens against a recovery by way of settlement or judgment. Similarly, many lien statutes provide for a sharing of the obligation for attorney's fees between the claimant and the lienholder. Consequently, after a claimant and his attorney have produced proceeds from a claim after years of effort and expenditures, another lienholder cannot recover on a lien without an obligation to prorate attorneys' fees with the successful claimant. However, as discussed in a previous article, certain federal statutes provide for collection of monies paid out to injured parties without regard for the costs of creating the fund of recovery.
Definition of "Lien"
When exploring the subject of liens in personal injury cases, it is important to understand the precise meaning given to the concepts of lien, subrogation, and assignment. These three terms convey similar ideas, but are not identical. Lien has been defined as "[a] claim, encumbrance, or charge on property for payment of some debt, obligation or duty," and a "[tie] that binds property to a debt or claim for its satisfaction."8 A lien is a charge imposed upon specific property, whereas an assignment is "the act of transferring to another all or part of one's property, interest, or rights."9 "Subrogation has been defined as "[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities."10 A number of third parties might have claims to a portion of the proceeds of a personal injury recovery. These claims might be based on subrogation or assignment. However, very few of these claims actually rise to the level of a lien. The term lien implies an enforceability against a fund of money. An appropriate analogy might be to the rights of a mortgage holder in real property as opposed to a general creditor of the property owner. A lienholder normally has rights of recovery against the property itself.
Two Types of Attorneys' Liens Under Missouri Statutes
One lien which is applicable to all claims filed in Missouri courts is the attorney's lien. Attorneys' liens upon a client's cause of action are provided for by law under § 484.130, RSMo 1994. The lien attaches at the commencement of an action in court or upon the filing of an answer containing a counterclaim.11 An "attorney's lien attaches to the cause of action" or counterclaim and "does so at the commencement of the action or service of an answer containing a counterclaim."12 The basic reason for the lien is to protect the interests of the attorney who by her efforts creates a fund for the benefit of the client. "When a client is sued, and retains counsel to defend [his interests], the client is asserting no cause of action [to] . . . which an attorney's lien can attach."13 If there is a defense of a case but no counterclaim is filed on behalf of the client, the attorney "merely defends the client against the plaintiff's claim, the client has no cause of action upon which an attorney's lien can attach."14 It is only when a counterclaim is filed on behalf of the client that an attorney's lien attaches.15
Under a companion statute, § 484.140, RSMo 1994, an attorney's lien may attach in the absence of a court action. However, an attorney wanting to perfect an attorney's lien in the absence of a filed court action must provide written notice to proposed defendants.16 The notice should be served on the proposed defendant. Service on the attorney for the adverse party is insufficient.17 If the proposed defendant is a corporation, service of the notice should be made in the same manner as personal service of a lawsuit on a corporation.18 This notice must include the percentage contingent fee as agreed between the attorney and his client.19 Presumably, the legislature felt that entering an appearance upon the filing of a claim or counterclaim provided sufficient notice for purposes of the lien provided in § 484.130, RSMo 1994.
The purpose of the Missouri attorneys' lien statute providing an attorney with a lien upon his/her client's cause of action or counterclaim is to protect counsel who undertakes filing a lawsuit or counterclaim on behalf of the client in the event that the attorney is successful in recovering assets as a result of the action or counterclaim.20 An attorney's lien upon a cause of action is a property right of the attorney.21 "A liberal construction should be given to the [attorney's lien] statute so that attorneys are afforded protection in enforcing their liens."22 The "Missouri attorneys' lien statutes are remedial in nature, as they simply provide [a] remedy by which [an attorney] who performs valuable services for another may have compensation for his work out of that which it has contributed to produce."23
Attorney's Lien Includes Out-of-Pocket Expenses Reasonably Incurred in Prosecution of Action
Another area of concern for attorneys is the issue of out-of-pocket expenses. It has been held that an attorney's lien includes proper and legitimate out-of-pocket advances for the costs of litigation. The Missouri Court of Appeals for the Western District, in Ganaway v. Department of Social Services,24 stated that "an attorney is entitled to a lien for any legitimate expense incurred by [the attorney] in the prosecution of an action, not necessarily limited to taxable items of costs and disbursements, but may include any expenditure which may properly be made in furtherance of the . . . action."25 The court distinguished the case of Koch-Laumand Contracting, Inc. v. May Dep't Stores ;26 which had been thought by some to provide precedent that out-of-pocket expenses are not lienable. The Ganaway court distinguished the Koch-Laumand Contracting case on the grounds the case dealt with the definition of "legal fees" in a contract action and not with the construction of § 484.130, the attorney's lien statute.27 The Ganaway court held that the law firm representing the plaintiff in a personal injury suit arising from an automobile collision was entitled to an attorney's lien for expenses necessarily incurred on plaintiff's behalf and that the attorney's lien statute made such lien superior to the Department of Social Services' right of recovery based on the department's payment of public assistance to the claimant.
When a lawsuit includes both a claim and a counterclaim arising out of the same transaction, the attorney's lien attaches only to the net sum due the plaintiff after the setoff of any amounts found due and owing on the counterclaim.28 In these circumstances the right of an attorney to assert a lien upon the whole of the recovery is inferior to the defendant's right to set off its judgment on the counterclaim against the plaintiff's judgment.29
Contingent Fee Contracts Authorized Under Missouri Statute
Section 484.140, RSMo 1994, also specifically authorizes contingent fee contracts in personal injury and certain other claims.30 Contingent fee agreements must be reduced to writing.31 Representing a client on an oral contingent fee basis is considered a violation of an attorney's ethical duties.32 In order to place an attorney's lien upon a client's claim, written notice is required informing the defendant that the attorney has an interest in the claim.33 Furthermore, the attorney must state the percentage of the contractual contingency fee in the body of the notice.34 A statutory attorney's lien under § 484.140, RSMo 1994, is not applicable in the absence of a court action upon a claim or counterclaim, unless notice is provided to the potential defendant(s) pursuant to the provisions of § 484.140.35
Contingent fee agreements in Missouri customarily provide for attorneys' fees of 33 1/3 percent of moneys recovered prior to trial, 40 percent if the case is tried, and 50 percent if the case is tried and appealed. Out-of-pocket expenses incurred in prosecuting the case are generally taken off the top of any recovery prior to the calculation of attorneys' fees. In the event that no recovery is ultimately made, Missouri rules provide that out-of-pocket expenses are the ultimate responsibility of the client. Trial judges may determine the reasonable value of services rendered if a dispute arises.36 Under Supreme Court Rule 4-1.5(a), guidance is provided as to whether a legal fee is clearly excessive:
507.182. Next friend, conservator, or guardian may employ attorney and incur expenses.Missouri Rule Against Fee-SplittingThe next friend, guardian ad litem or guardian or conservator shall have authority without an order of the court to contract for and employ an attorney upon a reasonable fee, including one contingent upon the outcome of such action or claim, and to incur reasonable expenses in the preparation and prosecution of such action or claim, but any such fee and expenses shall be subject to the approval of the court, but if approved by the court shall be payable out of any money or property recovered or obtained in the prosecution or settlement of such action, claim or any judgment thereon.
It is well-established that a contingent fee may be split between attorneys only on the basis of proportionate services rendered.38 In the case of Risjord v. Lewis, the Western District Court of Appeals held that agreements for a division of fees among attorneys from different law firms are acceptable "based only on a sharing of services or responsibility, and the agreement must provide 'that the division of fees be based' [on] the respective percentages of services rendered or responsibility assumed between the two [firms]."39 An agreement that violates established rules against fee-splitting is illegal, against public policy and not enforceable.40 "Merely recommending another lawyer or referring a case to another lawyer, and failing to do anything further in the 'handling of the case cannot be construed as performing service or discharging responsibility in the case.'"41 The Risjord v. Lewis court went on to state that "[t]he law is not a 'mere money-getting trade . . . members of the public who seek the services of an attorney cannot be treated by him as mere merchandise. . . ."42 "Fees are not owned, they are earned."43
Attorneys' Lien Rights Upon Termination of Employment by Client
An unfortunate but relatively frequent problem comes up when the claimant desires to exercise his or her right to terminate the services of the attorney handling a claim on a contingent fee agreement. It has been held by Missouri courts that a client has an absolute right to employ or discharge an attorney, even in the absence of any wrongdoing by the attorney. An attorney discharged for good cause will sometimes not have a right to an attorney's fee. Generally, a complete forfeiture of attorneys' fees will be "warranted only when the attorney's clear . . . violation of a duty" is found to have so destroyed the attorney-client relationship that the attorney is considered to no longer have a right to compensation for services rendered prior to the point of being discharged.44
An attorney discharged without good cause has a right to a reasonable fee for services rendered. The discharge of an attorney employed under a contingent fee contract will work a termination of the contingent fee agreement. If the contingent fee agreement is deemed terminated by the act of the client in discharging the attorney, how then does the attorney preserve a right to a fee for services rendered? Missouri courts struggled with this problem for years, but the issue was resolved in Plaza Shoe Store, Inc. v. Hermel, Inc.45 The Supreme Court of Missouri held that an attorney working on a contingent fee contract who is discharged by the client without cause is entitled to recover the reasonable value of his services, as measured by his normal hourly rate and the amount of hours put into working on the case, not to exceed the contracted fee, upon the happening of the contingency.46 In other words, the discharged attorney has a continuing lien on the cause of action of his client for his reasonable hourly wage, which is only payable upon settlement or satisfaction of a judgment. Absent a recovery by or on behalf of the client, the discharged attorney has no right to receive the hourly compensation under Plaza Shoe Store, Inc. v. Hermel.47
The Supreme Court of Missouri in International Materials Corp. v. Sun Corp., Inc.48 refined an attorney's right of recovery under the attorney's lien statute when an attorney does not complete performance of a contingent fee contract. The Supreme Court of Missouri held that when an attorney is discharged or withdraws prior to the completion of the contingent fee contract, the attorney is limited to a recovery in quantum meruit. The attorney is entitled to recover a fee for those services that confer a benefit upon the client. The client should be charged a fee only if the services unjustly enrich the client.49 The Court stated that the client should not have to pay for duplicative services. The Court cautioned that the hourly rate is a guideline and that the benefit ultimately conferred on the client is the final measure of the value of the attorneys' services.
The Court thus put a gloss on the ruling in Plaza Shoe Store, Inc. v. Hermel by providing that the trial court should make a determination as to whether the benefit conferred on the client by the attorney's efforts reasonably comports with the value of the calculation of hours invested in the case multiplied by the attorney's usual hourly rate. The Supreme Court of Missouri made a point of stating its strong suggestion that the successor-lawyer should objectively "examine the efforts of a previous lawyer and to use good faith in effecting a resolution of the first lawyer's claim, if any, to a fee."50 The Court went on to state that "[w]hen there is a change in counsel, the lawyers should try to effect a mutually satisfactory arrangement."51
Substituted attorneys of record who appear on behalf of a claimant after the discharge of original counsel also have a lien under § 484.130, RSMo 1994.52 The attorney's lien provides security for an attorney who has invested significant attorney time working on a contingent fee lawsuit, and a potential successor attorney must be mindful of the outstanding obligation to the original attorney and thus any significant limitation on the attorney's fee available to the successor attorney. If the original attorney has invested a significant amount of attorney time in a lawsuit, the projected attorney's fee available to the successor attorney might be quite limited.
An attorney who plans properly may be able to prevent the potentially harsh result of a quantum meruit recovery for the reasonable value of services rendered prior to discharge by including language in the contingent fee agreement calling for a specific mode of payment upon the discharge of the attorney prior to the completion of the litigation. In the Georgia case Morrow v. Stewart,53 the court did not restrict the discharged attorney to a quantum meruit recovery for work done prior to the date of termination. The court upheld a provision contained in the contingent fee agreement stating that upon the discharge of the attorney, the attorney's fee would be "based upon time devoted to my case at any hourly rate of $80.00 per hour, or the applicable percentage of fee due him under the terms of this agreement or any offers which have been made by any adversary or collateral party, whichever is greater." The court allowed recovery by the attorney of the contingent percentage of a settlement offer from the defendant outstanding at the time of the attorney's discharge.54
No case law has been found in Missouri or elsewhere that suggests public policy would prevent the enforcement of reasonable terms in a contingent fee agreement spelling out the rights and duties of the parties upon termination of the attorney's services by the client. A term calling for the application of the contingent fee percentage in a case where a settlement offer is outstanding at the time of discharge would seem to be a reasonable provision to include in a contingent fee contract. Prudence might suggest that the Plaza Shoe v. Hermel formula be set out as an alternative, whichever is greater. The Plaza Shoe recovery could only be greater if the plaintiff ultimately settled for an amount larger than the settlement offer outstanding at the time of termination of the original attorney's services.
Since the Supreme Court of Missouri in the Plaza Shoe case held that a discharged attorney should usually recover his/her normal hourly rate times the hours invested in prosecuting the case prior to the date of discharge, it might well be prudent to set out the normal hourly rate or rates in the contingent fee agreement. An aggressive attorney might even reflect a higher than usual hourly rate with the proviso that the enhanced hourly rate includes a premium because of the contingent nature of the employment. If the client contracts for a specific manner of calculating the fee due upon discharge without cause, the client would appear to be in a poor position to challenge a reasonable fee request calculated in the manner prescribed in the contract. Whatever financial terms might be negotiated, it would seem to be prudent for the attorney and client to spell out the terms of compensation upon termination of the attorney's services.
Although it has not been traditionally customary for Missouri plaintiff's attorneys to keep a record of their time spent on contingent fee matters, the Plaza Shoe case clearly provides a strong incentive for a plaintiff's attorney to keep an accurate record of his time expended on a contingent matter. Absent accurate time records, the right of the attorney to seek compensation on termination of his/her employment might be lost or at least severely compromised.
As discussed in our previous article, state and federal lien statutes generally provide that attorneys' liens for legal fees and expenses take precedence over other statutory liens.55 The attorney's lien protects the attorney's contractual position when a recovery is made for a client. A developing area of the law is the issue of whether a medical insurance plan has a right of subrogation against third party claims. Under Missouri law, a medical insurance plan historically could not be subrogated to their insured's personal injury claim, as the law viewed such an action as a prohibited assignment of a bodily injury claim and thus void as against public policy.56 However, the federal courts have reached a different result under ERISA. It has been held that "ERISA preempts any state law that would otherwise override the subrogation provision" in a medical insurance plan covered by ERISA.57
In Waller v. Hormel Foods Corp., the Eighth Circuit held that in an ERISA medical plan's subrogation recovery against a third party tortfeasor, the plan's recovery should be reduced by the amount of reasonable attorneys' fees incurred by the beneficiaries for obtaining settlement, based on the value of the legal services to the plan. This ruling was based on federal common law, which was invoked by the court to "fill the gaps left by ERISA's express provisions."58 Apparently, the insurance plan in question provided for subrogation against a third party tortfeasor but was silent on the issue of payment of attorneys' fees on such a subrogation claim. The Eighth Circuit's holding in Waller v. Hormel Foods Corp. effectively appears to be an endorsement of the fund theory, although the fund theory was not specified as a basis for the court's decision. The opinion in Waller v. Hormel Foods Corp. also did not specifically mention the attorney's lien statute.
Attorney's Lien Rights in Personal Injury Case With Workers' Compensation Lien of Employer/Insurer
A familiar and frequently encountered lien is the lien provided under Missouri law to workers' compensation insurers. The relationship of an attorney's lien to the workers' compensation lien provides a good example of the manner in which the law harmonizes the inconsistent interests of the claimant, his attorney, and a third party claimant with a financial interest in settlement proceeds. Pursuant to § 287.150.1, RSMo 1994,59 "the employer shall be subrogated to the right of the employee" when the employee has a cause of action against a third-party tortfeasor.60 The statute also provides that "any part of the recovery paid to the employee or his dependents . . . [after the employer's subrogation interest has been satisfied] shall be treated by them as an advance payment by the employer on account of any future installments of compensation . . ."61 The statute does protect the employee's attorney by providing that any recovery is subject to being prorated, stating that the employer is required to pay its "proportionate share of the expenses of the recovery, including a reasonable attorney fee."62
The worker's compensation statute was amended in 1993 to clarify its applicability to wrongful death recovery. Prior to the 1993 amendments, an employer's subrogation rights were not limited to the amount of the wrongful death proceeds attributed to dependents of the decedent employee who had, in fact, received benefit payments under the workers' compensation statute. The 1993 amendments provide that the subrogation right of the employer attaches only to that part of the wrongful death proceeds which are apportioned to a dependent who has received workers' compensation benefits as a dependent.63
The 1993 amendments also provide that, with respect to any recovery by the employer in a suit against a third party, any excess recovery over what was paid out in benefits must be apportioned between the employer and the employee (or his or her dependents), as provided for in §§ 287.150.2 and 287.150.3. This eliminates the possibility that the employer will gain a windfall recovery over and above actual benefit payments.
The 1993 amendments also limit the employer's subrogation interest to a sum equal to what the employee could recover against the third party.64 In such a case, the employer stands in the shoes of the employee but will not have its subrogation interest reduced proportionally to the comparative fault found on the part of the employee.65 The 1993 revisions to § 287.150 set out the formula for dividing attorney fees and expenses when comparative fault is found.
However, when comparative fault does not enter the picture, the distribution of the proceeds made against a third party tortfeasor is governed by the formula set out in the well-known case of Ruediger v. Kallmeyer Bros. Service.66 The formula is as follows:
The workers' comp situation thus is a good example of how Missouri law resolves the competing liens of the workers' comp insurer and the attorney whose efforts produced the recovery. The law requires the workers' comp carrier to be responsible for a proportionate share of the attorney's fee, thus protecting the attorney's financial interest to a substantial degree.
Mechanics of Enforcement of Attorney's Lien
While Missouri's version of the attorney's lien statute does "not provide a remedy to enforce [the lien], the courts will not suffer it to perish from such failure."70 "[A]n attorney wishing to foreclose on [an] attorneys' lien may proceed in an independent [law]suit or by [way of a] motion to enforce the lien in the original case."71 In the case "[w]here a settlement has been made without regard for the attorneys' lien, an attorney may bring an independent action against the defendants."72 "The remedy for enforcing the [attorney's] lien is left to the trial court, which has wide latitude to determine the propriety of method of enforcement selected."73 The trial judge "is considered an expert on [the subject of] attorneys' fees and may award reasonable attorney's fees as a matter of law."74 "A trial court's award of attorney's fees, being within its sound discretion, should not be reversed unless the amount was arbitrarily arrived at or was so unreasonable as to indicate indifference and lack of proper judicial consideration."75
"The fact that an attorney has [an enforceable] lien against his client's cause of action does not preclude the attorney from collecting his fees by other means, such as an action in [equity for] quantum meruit, without attempting to foreclose his [attorneys'] lien.76
It has long been established that an attorney may retain his fee out of his client's funds coming into his hands.77 An attorney is entitled to retain his compensation out of the proceeds of an unauthorized compromise that has been ratified by his client.78 Because the defendant or his insurer typically puts the name of the attorney for the claimant on the check or draft along with that of the claimant, the usual method of enforcement is that the attorney and the client have an incentive to encourage a reasonable resolution of any disagreement about fees or expenses.
In the case where an attorney is discharged and another counsel is substituted, the original attorney will have no lien if the petition is later dismissed and no fund is created for the client's benefit.79 In such a case a motion for enforcement of the original lien will not lie.80 However, the original attorney could still assert a "claim for compensation for legal services in an independent action [based on] quantum meruit."81
Conclusion
The primary financial protection for the claimant's attorney is the statutory attorney's lien. The lien is automatic by operation of law when a claim or counterclaim is filed in court. As a matter of careful practice, it probably makes sense for the claimant's attorney to provide information as to his agreed fee to the defendant or counterclaim defendant, although the case law has not required this step when a claim or counterclaim seeking money damages is placed on file in court. Absent a court filing, an attorney's lien may be perfected by serving written notice on the potential defendant setting out the fact of the contingent fee agreement and the agreed percentage of the contingent fee.
When an attorney's lien has been perfected by filing a claim or counterclaim or by sending written notice of the contingent fee, a defendant is legally bound to protect the interests of the claimant's attorney. The attorney's lien protects an attorney who is fired by the client without cause. The attorney's lien also protects an attorney when the client and the defendant attempt to carry out a settlement without accounting for the attorney's agreed contingent fee. Finally, the attorney's lien protects the attorney from attempts by the client to extract a reduction in the agreed contingent fee percentage after settlement of the case. The usual approach used by settling defendants is to set out a specific release of the attorney's lien in the settlement agreement. In addition, the defendant customarily puts the attorney's name on the check or draft in order to insure that the attorney receives his agreed compensation. The failure of the defendant to protect the attorney's lien interest of the claimant's attorney renders the defendant personally liable for the agreed attorney's fee directly to the attorney. The attorney can file a direct action against the defendant for his attorney's fees or a motion based on the attorney's lien in the original case.
Virtually all claims, charges and liens applicable in a personal injury settlement, such as Medicare claims, Medicaid claims, and hospital liens, are subordinate to the attorney's lien either by case law, statute, applicable regulation, or accepted custom. Generally, the third party claimant is responsible for a proportionate share of the attorney's fee, based on the theory that the attorney has created the fund, which serves to benefit the third party claimant as well as the claimant himself. The practical effect of this fund theory is that the third party receives a part of the claimant's recovery, less a proportionate payment on account of attorneys' fees. Looked at another way, the attorney's contracted contingent fee is not significantly diminished as a result of third party claims, because the law generally forces the third party claimant to pay its fair share of the attorneys' fees. It behooves those attorneys representing claimants to become well-versed in the rules related to attorneys' liens and the its relationship to other types of liens, claims and charges that may be applicable to a claimant's settlement proceeds.
Endnotes
1 Mr. Bradford is a 1972 graduate of the Tulane University School of Law, where he was a member of the board of editors of the Tulane Law Review. He practices as a trial lawyer in the firm of Glenn E. Bradford & Associates, P.C., in Kansas City, with emphasis on plaintiff's personal injury and criminal defense in state and federal court. Mr. Bradford has served as an adjunct professor of law at the University of Missouri-Kansas City School of Law.
2 Ms. Etem is a 1987 graduate of the University of Missouri-Columbia School of Law. She practices in the area of general litigation as of counsel for the firm of Husch & Eppenberger, L.L.C., in Kansas City.
3 Glenn E. Bradford & Amy Kiefer Hansen, Liens, Assignments, Subrogation and Other Traps for the Claimant's Lawyer, 53 J. Mo. Bar 248.
4 Glenn E. Bradford & Melinda M. Ward, The Medicare "Super Lien" Revisited, 56 J. Mo. Bar 44.
5 Kenney v. Leritz & Reinert, P.C., 811 S.W.2d 771, 773 (Mo. App. E.D. 1991).
6 Section 484.130, RSMo 1994.
7 Id.
8 Black's Law Dictionary (6th ed. 1990).
9 Id. at 119.
10 Id. at 1427.
11 Section 484.130, RSMo 1994 ("From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof in whosesoever [sic] hands they may come; and cannot be affected by any settlement between the parties before or after judgment."); see also, Reed v. Garner Indus., Inc., 832 S.W.2d 945 (Mo. App. E.D. 1992).
12 Id., see, Kansas City Area Transportation Auth. v. 4550 Main, 893 S.W.2d 861, 869 (Mo. App. W.D. 1995).
13 Id.
14 Id.
15 Id.
16 A form of Notice of Attorney's Lien appears at Missouri Practice, Procedural Forms, Dvorak and Burlison, Volume 11, Chapter 45 (Attorney's Liens), p. 467.
17 Imboden v. Renshaw, 76 S.W. 701, 705 (Mo. App. E.D. 1903).
18 Abbott v. United Rys. Co. of St. Louis, 119 S.W. 964, 966 (Mo. App. E.D. 1909).
19 Passer v. U.S. Fidelity & Guaranty Co, 577 S.W.2d 639, 646 (Mo. banc 1979).
20 Evans v. F.D.I.C., 981 F.2d 978 (8th Cir. 1992).
21 Reed v. Garner Indus., Inc., 832 S.W.2d 945 (Mo. App. E. D. 1992).
22 Ganaway v. Department of Social Services, 753 S.W.2d 12, 14 (Mo. App. W. D. 1988).
23 Hillside Enters., Inc. v. Carlisle Corp., 944 F. Supp. 793, 802 (E.D. Mo. 1996).
24 753 S.W.2d 12 (Mo. App. W.D. 1988).
25 Id. at 14.
26 623 S.W.2d 52 (Mo. App. E.D. 1981).
27 See Ganaway, 753 S.W.2d at 15.
28 Hillside Enters., Inc. v. Continental Carlisle, Inc., 147 F.3d 732, 735 (8th Cir. 1998).
29 Id.
30 "[I]t shall be lawful for an attorney at law . . . to contract with his client for legal services rendered or to be rendered him for a certain portion or percentage of the proceeds of any settlement of his client's claim or cause of action. . . .".
31 Rule 4-1.5(c), Supreme Court Rules (Mo. 2000).
32 Id.
33 Section 484.140, RSMo 1994 ("[U]pon notice in writing by the attorney who has made such agreement with his client, served upon the defendant or defendants, or proposed defendant or defendants, that he has such an agreement with his client, stating therein the interest he has in such claim or cause of action, then said agreement shall operate from the date of the service of said notice as a lien upon the claim or cause of action. . . .").
34 Id.; see also, Passer v. U.S. Fidelity & Guaranty Co., 577 S.W.2d 639, 646 (Mo. banc 1979).
35 Section 484.140, RSMo 1994; see also, Orr v. Mutual Benefit Health and Accident Assoc., 207 S.W.2d 511 (Mo. App. W.D. 1947) ("Insured's attorney who was employed on a contingent fee contract" had no lien against the insurance company settling with its insured prior to any suit being filed).
36 Plaza Shoe Store, Inc. v. Hermel, Inc., 636 S.W.2d 53, 60 (Mo. banc 1982).
37 See, § 537.095, RSMo 1994 ("Joinder of parties not required, when, effect on recovery–plaintiff ad litem, recovery, distribution"); § 507.182, RSMo 1994 ("Next friend, conservator, or guardian may employ attorney and incur expenses"); § 507.184, RSMo 1994 ("Powers of next friend, conservator or guardian on trial and settlement–court approval").
38 Risjord v. Lewis, 987 S.W.2d 403(Mo. App. W.D. 1999).
39 Id. See, also, Rule 4-1.5(e), Supreme Court Rules (Mo. 2000) ("A division of fee between lawyers . . . not in the same firm" is proper only where "the division is in proportion to the services performed.")
40 Am. Civil Liberties Union/Eastern Mo. Fund v. Miller, 803 S.W.2d 592 (Mo. banc 1991).
41 Risjord v. Lewis, 987 S.W.2d at 405, quoting from McFarland v. George, 316 S.W.2d 662, 670-71 (Mo. App. E.D. 1958).
42 987 S.W.2d at 406, quoting McFarland v. George, 316 S.W.2d 662, 669 (Mo. App. E.D. 1958).
43 Id.
44 See, International Materials Corp. v. Sun Corp., 824 S.W.2d 890, 895 (Mo. banc 1992).
45 636 S.W.2d 53 (Mo. banc 1982).
46 See id.
47 Id.
48 824 S.W.2d 890 (Mo. banc 1992).
49 Id. at 896.
50 824 S.W.2d 890, 896.
51 Id.
52 Bishop v. United Rys. Co. of St. Louis, 147 S.W. 170, 172 (Mo. App. E.D. 1912).
53 399 S.E.2d 280 (Ga. Ct. App. 1990).
54 Id. at 281.
55 Glenn E. Bradford & Amy Kiefer Hansen, Liens, Assignments, Subrogation and Other Traps for the Claimant's Lawyer, 53 J. Mo. Bar 248.
56 See, e.g., Schweiss v. Sisters of Mercy, St. Louis, 950 S.W.2d 537 (Mo. App. E.D. 1997).
57 Waller v. Hormel Foods Corp., 120 F. 3d 138 (8th Cir. 1997).
58 Landro v. Glendenning Motorways, Inc., 625 F.2d. 1344, 1351 (8th Cir. 1980).
59 Effective August 28, 1993.
60 Section 287.150.1, RSMo 1994.
61 Section 287.150.3, RSMo 1994.
62 Id.; See also, Ruediger v. Kallmeyer Bros. Service, 501 S.W.2d 56, 57 (Mo. banc 1973) (quoting Mo. Rev. Stat. § 287.150 (1969)).
63 Section 287.150.2, RSMo 1994 ("[T]he employer shall receive or have credit for sums paid or payable under this chapter to any of the dependents of the deceased employee to the extent of the settlement or recovery by such dependents for the wrongful death. Recovery by the employer and credit for future installments shall be computed using the provisions of subsection 3 of this section relating to comparative fault of the employee.").
64 Section 287.150.1, RSMo 1994 ("[E]mployer may recover any amount which such employee or his dependents would have been entitled to recover.")
65 Id. See, Rogers v. Home Indem. Co., 851 S.W.2d 672 (Mo. App. W.D. 1993).
66 501 S.W.2d at 59.
67 Id.
68 See Schumacher v. Leslie, 232 S.W.2d 913, 919 (Mo. banc 1950).
69 Consolidated Freightways v. Batton, 673 S.W.2d 96, 98 (Mo. App. E.D. 1984).
70 Nelson v. Massman Const. Co., 120 S.W.2d 77, 87 (Mo. App. W.D. 1938).
71 Mercantile Bank v. Jones, 890 S.W.2d 392 (Mo. App. W. D. 1995).
72 B-Mall Co. v. Williamson, 977 S.W.2d 74 (Mo. App. W.D. 1998).
73Reed v. Garner Industries, Inc., 832 S.W.2d 945, 949 (Mo. App. E.D. 1992).
74 Bitting v. Central Pointe Condominium Manager, 970 S.W.2d 898, 901 (Mo. App. E.D. 1998).
75 Id.
76 Moore v. Campbell, 904 S.W.2d 378, 381 (Mo. App. W.D. 1995).
77 Frissell v. Haile, 18 Mo. 18 (Mo. 1853).
78 Beagles v. Robertson, 115 S.W. 1042, 1049 (Mo. App. E.D. 1909).
79 Random Acres Development Co., Inc. v. Tierney, 579 S.W.2d 800 (Mo. App. W.D. 1979).
80 Id.
81 Id.