No Oklahoma divorce litigant is required to have legal representation nor is he/she entitled to public appointment of a lawyer. Kiddie v, Kiddie, 1977 OK 69, 563 P.2d 139. Instead, a litigant may represent him/her self, use a divorce kit, or whatever. If you are considering the latter course, I'd surely recommend that you read the first two chapters: (1) The Adversarial Nature of Litigation and the Finality of Judgments; and (2) The Divorce Kit Do-It-Yourself Mentality, before making your decision.

This chapter assumes that a client wants to consider obtaining a lawyer and discusses the nature of the attorney/client relationship in a divorce case. It reviews these topics:  

   Why Have Lawyers, Anyway?
   Why Does Divorce Law Have To Be So Complicated?
   The Attorney/Client Relationship
Limitations On the Representation
The Client's Role
The Lawyer's Role
One Lawyer Divorces
   Disputes and Terminating the Relationship
   Selecting  An Oklahoma Divorce Lawyer
   Attorney Fee Contracts
Hourly Charge Rates
   Attorney Fee Liens
Retaining Liens
Charging Liens
   Some Great Lawyer Movies

     WHY HAVE LAWYERS, ANYWAY? The desirability of having lawyers around has been argued at least since Shakespearian days ("First thing we do, let's kill all the lawyers") and in lots of modern humor ("Q: What do you call 5,000 dead lawyers at the bottom of the ocean? A: A good start"). Most everyone, especially lawyers, likes "lawyer jokes" and you'll have no trouble finding lots of them on the Internet... just search for "lawyer jokes". Gallup polls concerning various occupations' trust levels persistently place lawyers at or near the bottom of the list, around used car salesmen. So, why not have a good laugh and then get rid of 'em, just like Shakespeare said?

Before giving you my answer to the question, let me ask you another, instead:

How many of these movies have you seen (depending on your age, of course) and/or liked during the last fifty years or so: Absence of Malice, A Civil Action, A Time To Kill, A Few Good Men, Anatomy Of A Murder, ...And Justice For All, Armistad, Class Action, Ghosts Of Mississippi, Inherit The Wind, Murder In The First, Pelican Brief, People v. Larry Flynt, Philadelphia, Suspect,The Chamber, The Caine Mutiny, The Client,The Devil's Advocate, The Firm, The Hurricane, The Rainmaker, The Verdict, To Kill A Mockingbird, Twelve Angry Men, Witness For The Prosecution, and, to be sure, My Cousin Vinny.

I'll ask another:  Why did you see these movies and (I'm guessing) why did you like most of them?

Probably, several answers are true: movies about lawyers and the legal system usually involve fundamental clashes between good and evil, order and disorder, love and hate, truth and lies. Such movies just make for good plain drama. Very often in the movies, the truth is presented clearly and the higher value prevails, or, at least, if it doesn't, we hope that it will. Such movies fantasize our hope. In movies and in real life, good doesn't always prevail, but, still, we hope that it will. In real life, truth is not always so clearly evident since perceptions of truth vary from one adverse client to another. But, whether in movies or in real life, the person on whose shoulders the client's perspective and hope rests is a lawyer who is seeking justice according to the perspective of that client. For many drawn to the legal profession, including this author, what higher a calling might there be? It is, I would say, a noble calling. For whatever reason, people are simply fascinated by movies about lawyers.

My suspicion is that, despite public opinion polls, if most of the public doesn't actually like lawyers, they want to. They want to because they know that, when lawyers do what they ought to, the lawyer's role is not only valuable to the client but is also valuable to society as a whole. The bottom line is that lawyers are needed by the public because lawyers help, or at least try to help, people who lack the ability to help themselves in a legal environment. Even if I'm wrong and the public really doesn't like lawyers, I'm not shy to say that the public is wrong. I've been a lawyer for 32 years and I know something about the men and women with whom I share this oath:

I do solemnly swear that I will support, protect and defend the Constitution of the United States, and the Constitution of the State of Oklahoma; that I will do no falsehood or consent that any be done in court, and if I know of any I will give knowledge thereof to the judges of the court, or some one of them, that it may be reformed; I will not wittingly, willingly or knowingly promote, sue, or procure to be sued, any false or unlawful suit, or give aid or consent to the same; I will delay no man for lucre or malice, but will act in the office of attorney in this court according to my best learning and discretion, with all good fidelity as well to the court as to my client, so help me God.

What I know about these women and men is this: For most, this oath is not an empty promise. Most lawyers endeavor to fulfill it. That's what makes lawyers worthwhile having around. When they are needed, that's why I suspect that the public is glad that lawyers are still around. That's why, when a person needs a lawyer, Ghostbusters doesn't get the call.

     WHY DOES DIVORCE LAW HAVE TO BE SO COMPLICATED? The answer is that it doesn't. Oklahoma's initial divorce statutes, embracing all of the divorce topics (divorce, child issues, property issues, alimony) barely exceeded four pages in a book. But, as various "what if" questions have been experienced by litigants or thought of by legislators, and as social and other ideas about marriage and divorce have changed over time, statutes have been adopted or modified to address the new issues or attitudes. And, to be sure, although divorce law has long been determined to be within the province of the states and not the federal government, during the past twenty-five or so years, the federal government has compelled the states (at the risk of losing federal funding for Aid To Families With Dependent Children - AFDC)  to adopt many new laws relating to child support. Oklahoma's existing divorce-related statutes literally counts hundreds of statutory law pages beyond their original four.

Quite a number of these new pages relate to the mobility of our society. In 1900, people did not move around all that much. In 2000, they do. Original child custody, visitation and support orders entered in one state must often be enforced and/or modified in another. When that occurs, what law applies - the original state's or the subsequent state's laws?  Several "uniform" statutes have been adopted since the 1950's to address those questions in various contexts.

And, sometimes, the Legislature writes statutes imprecisely and we scratch our collective head wondering, "What does this mean?" The 1999 statute which revised Oklahoma's child support guidelines, certainly the most poorly written statute these eyes have ever seen, is a good example. Assuming that a Legislative act passes constitutional muster, no law requires that Legislatures adopt laws which make sense, are well defined, or are even consistent with previously enacted laws. A Legislature is free to enact a law and then go home, accountable only to the electorate.

Individual litigants, lawyers and the courts are left to resolve statutory ambiguities and/or interpret terms the Legislature used but did not define. That case by case process is slow and costly. Only after one or several appeals are done does the legislation get the definition it could have had if the Legislature had written the text well in the first place.

     THE ATTORNEY/CLIENT RELATIONSHIP. In an attorney/client relationship, the lawyer has two distinctly different roles: First, the lawyer is an advisor, a counselor. In that role, the lawyer hears from the client about the "facts" and then advises the client of the potential consequences of those facts in the legal context presented. Second, if litigation is involved, the lawyer receives the decisions made by the client about "what" the client wants the lawyer to attempt to do. In this representative role, the lawyer is an extension of the client in court proceedings and/or in discussions with others who are involved in the matter. The lawyer is never the "principal", the lawyer is the "agent." The Oklahoma Rules of Professional Conduct define numerous other qualities of the relationship.

  Decisions.  As noted above, clients define the objectives of the relationship and make settlement decisions. The lawyer, in consultation with the client, mainly decides the means, the "how to", of accomplishing the client's objectives. Part of Rule 1.2 reads:

Rule 1.2  Scope of Representation
(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d) and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

  Limitations on the Representation.  A lawyer is prohibited from assisting a client's intention to commit crime or fraud. Additional parts of rule 1.2 read:

(b) A lawyer may limit the objectives of the representation if the client consents after consultation.
(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

Also, as discussed in "The Lawyer's Role", below, one lawyer cannot ethically represent both parties in a divorce case.

  The Client's Role.  In addition to making decisions about settlement and/or trial positions, the client's job is to tell the truth. The client's lawyer needs to know what the client knows and a client should never shy away from telling his/her lawyer any unpleasant fact about the client. A lawyer is not in any sense of the word the client's "judge" and does not want to be. A lawyer cannot evaluate or prepare to deal with information about which the lawyer does not know and the absence of knowledge will affect the lawyer's advice. So, the client should "tell all", the good, the bad and the ugly.

The client's obligation to tell the truth extends to sworn testimony before the judge, as well. While information received in confidence by a lawyer must be kept that way most of the time, clients should also understand that if a client lies in court and the lawyer knows about it, the Supreme Court's Oklahoma Rules of Professional Conduct may require the lawyer to tell:

Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take the following remedial measures:
(A) when a client has offered false evidence, the lawyer shall promptly call upon the client to rectify the same; if the client refuses or is unable to do so the lawyer shall promptly reveal its false character to the tribunal; or
(B) when a person other than a client has offered false evidence, the lawyer shall promptly reveal its false character to the tribunal.
(b) The duties stated in paragraph (a) are continuing, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

Rule 1.6, Confidentiality, is discussed below. Additional client roles will vary from case to case and from lawyer to lawyer. Most times, a client will save money and time by doing a lot of work - getting and/or copying needed documents, whatever. But, the bottom line here is this: A client's job is to tell the truth.

  The Lawyer's Role.  The Oklahoma Rules of Professional Responsibility require that the lawyer's representation be "competent" (Rule 1.1) and diligent (Rule 1.3), and that the lawyer communicate with the client about matters pertaining to the representation (Rule 1.4). A lawyer must exercise independent professional judgment and give candid advice (Rule 2.1). A lawyer must avoid taking frivolous positions on behalf of a client (Rule 3.1). Lawyer's must also fairly cooperate in the adversary's request for information, among other such duties (Rule 3.4).

  One Lawyer Divorces.  A lawyer must avoid conflicts of interest in various contexts (Rules 1.7, 1.8, 1.9, 1.10). These Rules, and others, make it ethically impossible that the same lawyer represent both parties in the same litigation. In other words, one lawyer cannot represent both parties in a divorce case.

  Confidentiality.  And, as noted in "The Client's Role", above, Rule 3.3 prohibits a lawyer from knowingly presenting false information to the court, even if the false information is contained in the client's testimony. Generally, the lawyer must keep the confidences of a client, but exceptions exist:

Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
(b) A lawyer may reveal, to the extent the lawyer reasonably believes necessary, information relating to representation of a client:
(1) to disclose the intention of the client to commit a crime and the information necessary to prevent the crime;
(2) to rectify the consequences of what the lawyer knows to be a client's criminal or fraudulent act in the commission of which the lawyer's services had been used, provided that the lawyer has first made reasonable efforts to contact the client but has been unable to do so, or that the lawyer has contacted and called upon the client to rectify such criminal or fraudulent act but the client has refused or is unable to do so.
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(4) or as otherwise permitted under these Rules.
(c) A lawyer shall reveal such information when required by law or court order.

So, while confidentiality is assured in most instances, if a client tells the lawyer he/she is about to commit a crime, or if the lawyer has been unwittingly "used" by the client in the commission of a crime or fraudulent act, of if the client has lied to the court and the lawyer knows it, or in the other areas addressed by Rule 1.6, the "confidential" information may require disclosure by the lawyer.

     DISPUTES AND TERMINATING THE RELATIONSHIP.  Communication between lawyers and clients usually solves problems that arise. But, sometimes, the relation must be concluded, whether the choice be by the client or by the lawyer. But, even if such a choice be made, some limits exist, if the decision occurs in the midst of litigation:

Rule 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;
(3) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(4) the client has used the lawyer's services to perpetrate a crime or fraud; or
(5) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent to the extent that it is likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
(2) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(3) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(4) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

As noted above, if litigation is active, a lawyer may not just quit, even if fired by the client or if the lawyer "fires" the client. Permission of the court must be sought by a motion to withdraw. Although such motions are usually granted, if, for example, trial is immanent, the court may refuse the request.

The language in (d), above, is discussed in "Attorney Fee Contracts" and "Attorney Fee Liens", below.

     SELECTING AN OKLAHOMA DIVORCE LAWYER.  The attorney and client mutually choose each other. Given the intimacy required concerning family law representation, it is desirable that the match be a good one. The lawyer's needs are these: be sure that a conflict of interests does not exist, that the client's expectations, if not demands, are reasonable and at least potentially attainable, and that the client has the capability of paying the lawyer's fee. The client needs a lawyer who has the time and skill commensurate with performing the legal services the client needs to have done. If a case involves a child custody dispute or has complex property or support alimony issues, the client might do well to select a lawyer especially seasoned and skilled in divorce practice. If the case is relatively simple, the client will do as well or better with a lawyer who is comparatively less skilled/seasoned than are some others in the community. Regardless of the lawyer's skill/experience level, divorce practice requires more than a tolerance for working with clients at an exceptionally intimate level. This offers a few suggestions about how a prospective client might go about selecting the right one.

Specialization, Nyet!  Some states have implemented "specialization" or "certification" procedures by which a member's longevity as a lawyer, his/her percentage of cases in a given area, and the successful completion of standardized "tests" will authorize a lawyer to represent to the public that he/she is a "specialist" or "certified" in certain fields of law. Unfortunately (my opinion), Oklahoma is not one of them. Under Rule 7.4, while a lawyer may say that he/she limits his/her practice to a particular field of law, he/she may not hold him/herself out as a "specialist" (except for patent or admiralty attorneys). While Mary Doe, attorney may properly say, "John Doe specializes in divorce law", John Doe cannot properly tell you that about himself.

Take note: Advertisements do not equate to specialization. Solicitation of cases by a lawyer tells a potential client almost nothing he/she "needs to know", other  than the fact that the lawyer wants to be hired and is willing to pay someone to publicize that fact. "Yellow pages" ads don't come cheap!

Think About What Is Needed To Be Done. What does a client "need to know" about a lawyer when trying to make a selection? In my opinion, two things about the lawyer's reputation are needed to be known - his/her reputation for ethics (e.g., honesty and not being a jerk in litigation) and his/her reputation for the knowledge and skill as the same relates to the complexity of the client's case.

Reputation for ethics and not being a litigation jerk: Lawyers whose word cannot be trusted, and/or lawyers who are uncooperative with opposing counsel as the case unfolds in its discovery or other pretrial phases, not only give the legal profession a black eye, they drive up the financial and emotional costs of litigation to all concerned. So, while a client will rightly want a lawyer who is skilled, tough and thorough in the courtroom and isn't some sort of pansy when working with opposing counsel, a client does him/herself a disservice by thinking, "I want the meanest son-of-a-bitch lawyer I can find."

Skill and knowledge requisite to the tasks needed to be performed:  Some divorces involve very difficult and elaborate issues, but most do not. A relatively "simple" divorce case is one in which child custody is not at issue, the marital estate is not humongous, and no unusual fact and/or legal issues are involved. A client will be as well served by a lawyer who is old enough as a lawyer to have a good grasp of fundamental divorce law and principles but not so seasoned and established in the divorce lawyer community as to have established a reputation for being "one of the best". The latter group charges more, the former group charges less. And, if a case is pretty "simple", "less is more" as far as the client's needs being satisfied are concerned. If a case has one or more complex issues, e.g., child custody, division of a large marital estate, a request for a large amount of support alimony, the client should probably consider a lawyer whose reputation for skillful handling of such things is rather well established.

Family Law Section Leadership. Many state bar associations have organized elements composed of lawyers who are highly interested in particular fields of law, and these elements are usually called "sections". The Oklahoma Bar Association's Family Law Section is one of the most active and highly respected of such "sections" in the OBA. A telephone call to the current or a past "chair" or other officer of that organization will likely get a potential client some candid and accurate recommendations of lawyers in various geographical areas of the state. To see a list of this year's section officers, click here and select Family Law in the "section" box. Or, call the Oklahoma Bar Association, 405-524-2365, and ask for the name and phone number of the current chair or chair-elect of the Family Law Section.

Lawyers You or Your Friends Know. If you know a lawyer you respect (or who comes highly recommended to you by a friend), even if that lawyer does not take family law cases, call that lawyer and ask if he/she is willing to recommend a lawyer in the community to you for the kind of case you have. Lawyers are usually glad to provide such assistance.

If You Qualify For Legal Aid Representation.  If you qualify for representation by such pro bono organizations, my experience with their lawyers is very good and my opinion is that they provide quality representation to their clients. Click the following for information about such offices in Oklahoma: Western Oklahoma (including Oklahoma City); Eastern Oklahoma (including Tulsa).

     ATTORNEY FEE CONTRACTS.  Although not required, its best for the client and the lawyer to have the terms of their fee agreement spelled out in a written agreement. The Oklahoma Rules of Professional Conduct impose various standards and limitations of such agreements. Parts Rule 1.5 are emphasized, following:

Rule 1.5. Fees
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.
(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, whether the client is to be liable for reimbursement of litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery showing the remittance to the client and the method of determination.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the result obtained, other than actions to collect past due alimony or child support; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the participation of all of the lawyers involved; and
(3) the total fee is reasonable.

To summarize Rule 1.5, the fee should be "reasonable", its basis must be communicated by the lawyer either before or shortly after commencing representation, preferably in writing, and contingent fees in divorce cases are prohibited (with the exception of post-divorce actions to collect accrued and unpaid alimony or child support).

The rule against divorce contingent fees is well entrenched in Oklahoma. Opperud v. Bussey, 172 Okla. 625, 46 P.2d 319 (1935). In addition to divorce actions themselves, the Rule also applies to appeals from divorce judgments, even though the granting of divorce is not an issue in the appeal. McCrary  v. McCrary, 1988 OK 122, 764 P.2d 522. In State ex rel OBA v. Fagin, 1992 OK 118, 848 P.2d 11, the Supreme Court held that provisions for an "enhanced" fee based upon "results obtained" was tantamount to a contingent fee, and, hence, prohibited.

  Retainers. Until Wright v. Arnold, 1994 OK CIV APP 26, 877 P.2d 616, it was not uncommon for Oklahoma fee contracts to contain provisions for "non-refundable" minimum fees (also called "retainers", "engagement fees" or the like). Although the Oklahoma Supreme Court has not addressed the topic, the Oklahoma Court of Civil Appeals held such a provision to be unenforceable because of Rule 1.16(d)'s requirement that, upon termination of representation, a lawyer must refund "any advance payment of fee that has not (among other reasons for the court's holding). In this writer's opinion, the Wright v. Arnold decision is not well thought out and fails to consider various arguments and authorities from other jurisdictions on the topic. In any event, it remains the only Oklahoma appellate decision addressing the point.

  Hourly Charge Rates.  Although alternative fee agreements are possible (e.g., a "flat fee" for the entire representation and "unit billing" for particular tasks within the representation), the hourly fee rate multiplied by time spent working on a case remains the norm in Oklahoma. Hourly charge rates vary widely, from community to community, and, within communities, from lawyer to lawyer. No Oklahoma appellate cases address the issue of when a particular hourly rate might be "excessive" under Rule 1.5. In Oklahoma City and Tulsa (and perhaps other communities), the "high end" known to this writer is around $225 or so per hour but many lawyers charge much less, some as low as $75 per hour. In this writer's opinion, in Oklahoma City and Tulsa, very skilled attorneys can be engaged in divorce representation for around $175 per hour and many others who are quite competent will charge around $150 per hour.

     ATTORNEY FEE LIENS.  Attorney fees are protected by two types of liens in Oklahoma, the so-called "charging lien" and the "retaining lien". The "charging lien" secures the attorney's fee against the recovery accomplished in the litigation and can be enforced against the person who pays money directly to the attorney's client, rather than to the attorney. The "retaining lien" applies to a client's property that is in the attorney's possession. The distinction between these types of liens was discussed in Republic Underwriters Insurance Co. v. Duncan, 1985 OK 30, 713 P.2d 568:

¶13  It is a well-settled proposition of law that an attorney has a general possessory or retaining lien which attaches to property or monies of his client in his hands for the fees or for any general balance due him form his client. American National Bank of Stigler v. Funk, 68 Okl. 169, 172 P. 1078 (1918). We find nothing in the statutes which evinces legislative intent to do away with an attorney's possessory or retaining lien and such intent cannot be presumed or implied. Such a general possessory or retaining lien upon a client's documents, property or monies coming into an attorney's hands finds its genesis in the common law, as distinguished from the statutory foundation for a charging lien upon a client's specific recovery, if any, in a particular cause of action. The practical difference is that the common law retaining lien depends upon the attorney's possession of and attaches to certain documents, property or monies; while the statutory charging lien arises only upon the commencement of an action or the filing of an answer containing a counterclaim, and attaches only to a verdict, decision, finding or judgment. Thus, in the absence of contrary agreement, the attorney's retaining lien may be the only recourse available to secure the satisfaction of a client's debts for legal services not requiring the commencement of an action or the filing of an answer or counterclaim. The retaining lien is therefore uniquely applicable to those situations, including the performance of legal services in the course of settlement of disputes through counsel. Nevertheless, the retaining lien entitles the attorney only to retain lienable documents, property, or monies in his possession pending satisfaction of any general balance or fee due him from the client. An attorney validly exercising this retention right is not thereby vested with legal title to the retained documents, property or monies and may not reduce them to his independent benefit prior to agreement between attorney and client or, in lieu thereof, judicial adjudication of the attorney's asserted retaining lien. Moreover, if possession of such documents, property or monies is voluntarily relinquished to the client, the retaining lien is lost.

  Retaining Liens.  As previously noted, Rule 1.16(d) specifically states that, upon termination, "The lawyer may retain papers relating to the client to the extent permitted by other law." Views vary as to whether such a lien may be properly asserted in the midst of ongoing litigation where non-delivery of a client's documents may very adversely affect the client's needs. As far as this writer knows, no Oklahoma appellate court decision addresses the point.

  Charging Liens.  5 O.S. §6 provides that:

From the commencement of an action, or from the filing of an answer containing a counterclaim, the attorney who represents the party in whose behalf such pleading is filed shall, to the extent hereinafter specified, have a lien upon his client's cause of action or counterclaim, and same shall attach to any verdict, report, decision, finding or judgment in his client's favor; and the proceeds thereof, wherever found, shall be subject to such lien, and no settlement between the parties without the approval of the attorney shall affect or destroy such lien, provided such attorney serves notice upon the defendant or defendants, or proposed defendant or defendants, in which he shall set forth the nature of the lien he claims and the extent thereof; and said lien shall take effect from and after the service of such notice, but such notice shall not be necessary provided such attorney has filed such pleading in a court of record, and endorsed thereon his name, together with the words "Lien claimed."

Such a lien may continue even if the client subsequently discharges the attorney and secures another. Campanello v. Mason, 1977 OK 209, 571 P.2d 449; Martin v. Buckman, 1994 OK CIV APP 89, 883 P.2d 185. As noted in Campanello v. Mason, even if the words "Lien claimed" do not appear on a pleading, other means exist of informing a client adversary or an adversary of such a claim. The court summarized the means in ¶14 of its opinion:

In interpreting the statute, this Court has held that an attorney's lien may be made effective in any one of three ways:
1. By the endorsement of the claim upon a petition or other like pleading filed in the case.
2. By giving written notice to the adverse party (such notice to be given before judgment or settlement becomes effective), or
3. By entering or causing to be entered a statement that a lien is claimed in the judgment docket opposite the entry of the judgment (such entry in docket book may be made any time before the rights of third parties intervene).

The court took care to note that it was not addressing whether charging liens might attach to support orders as well as property division orders, and, to the knowledge of this writer, that particular issue has not been addressed in an Oklahoma appellate court decision.


For gripping drama, sometimes comedy, but always engaging entertainment, here's a list of some great movies about lawyers and/or the legal system.
Absence of Malice
Paul Newman, Sally Field
A Civil Action
John Travolta, Robert Duvall, Kathleen Quinlan
A Time To Kill
Sandra Bullock, Samuel Jackson, Kevin Spacey
A Few Good Men
Tom Cruise, Jack Nicholson, Demi Moore
Anatomy Of A Murder
James Stewart, Ben Gazzara, Lee Remick, George C. Scott
...And Justice For All
Al Pacino, Jack Warden, John Forsythe
Morgan Freeman, Anthony Hopkins
Class Action
Gene Hackman, Mary Elizabeth Mastrantonio
Ghosts Of Mississippi
Alec Baldwin, Whoppi Goldberg, James Woods
Inherit The Wind
Spencer Tracy, Frederic March
Murder In The First
Kevin Bacon, Christian Slater
My Cousin Vinny
Joe Pesci, Marisa Tomei
People v. Larry Flynt
Woody Harrelson
Tom Hanks, Denzel Washington
Dennis Quaid, Cher
The Caine Mutiny
Humphrey Bogart, Van Johnson, Fred MacMurray, Jose Ferrer, E.G. Marshall
The Chamber
Chris O'Donnell , Gene Hackman
The Client
Tommy Lee Jones, Susan Sarandon
The Devil's Advocate
Keanu Reeves, Al Pacino
The Firm
Tom Cruise, Gene Hackman, Jeanne Tripplehorn
The Hurricane
Denzel Washington
The Pelican Brief
Julia Roberts, Denzel Washington
The Rainmaker
Matt Damon, Jon Voight, Danny DiVito, Danny Glover
The Verdict
Paul Newman, James Mason, Jack Warden
To Kill A Mockingbird
Gregory Peck
Twelve Angry Men
Henry Fonda, Lee J. Cobb
Witness For The Prosecution
Tyrone Power, Marlene Dietrich, Charles Laughton
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