Olszewski v. Jordan ( 2015 )

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RALPH OLSZEWSKI v. JAMES F.
JORDAN III ET AL.
(SC 19215)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Robinson and Vertefeuille, Js.
Argued December 2, 2014—officially released March 3, 2015
Stephen F. McEleney, with whom were David J. Tay-
lor and Emily Peterson, for the appellant (plaintiff).
Eric H. Rothauser, with whom, on the brief, were
John L. Bonee III and Lee B. Ross, for the appellees
(defendant Carlo Forzani et al.).
Opinion
ZARELLA, J. The principal issue in this appeal is
whether attorneys are entitled by operation of law to
equitable charging liens against marital assets for fees
and expenses incurred in obtaining judgments for their
clients in marital dissolution actions. The plaintiff,
Ralph Olszewski, challenges the Appellate Court’s con-
clusion that equitable charging liens are permissible in
marital dissolution actions in Connecticut. He claims
that they are barred by the Rules of Professional Con-
duct, they are not supported by Connecticut precedent,
and the public policy considerations that justify equita-
ble charging liens in other contexts do not apply in
marital dissolution actions. The defendants Carlo For-
zani and Carlo Forzani, LLC,1 respond that equitable
charging liens against marital assets are permissible in
Connecticut because the Rules of Professional Conduct
specifically provide for charging liens, the rules do not
preclude the use of charging liens in marital dissolution
actions, and public policy considerations support their
use in domestic relations matters. We agree with the
plaintiff and reverse the judgment of the Appellate
Court.
The following facts and procedural history are set
forth in the Appellate Court’s opinion. ‘‘In August, 2009,
the [dissolution] court rendered a judgment dissolving
the marriage of [James Jordan and Diana Jordan].
James Jordan had been represented by . . . Carlos
Forzani, an attorney of the . . . law firm, Carlo For-
zani, LLC, in that proceeding. At the time of the dissolu-
tion of marriage judgment, James Jordan and Diana
Jordan jointly owned, among other assets, an account
at Northwestern Mutual (account), from which the dis-
solution court ordered that 50 percent of the attorney’s
fees (fees) of the defendants be paid and, after payment
of certain other obligations, that the balance remaining
in that account be divided equally between James Jor-
dan and Diana Jordan.
‘‘While an appeal to this court from the judgment of
dissolution was pending, in October, 2009, [the plain-
tiff], who is the father of Diana Jordan, brought this
action against James Jordan to collect the outstanding
balance on James Jordan’s promissory note to him. In
November, 2009, the plaintiff obtained a prejudgment
remedy, which authorized the attachment of the pro-
ceeds of the account. In April, 2011, the [trial] court
[found] in favor of the plaintiff in the amount of
$128,135.04. The plaintiff, thereafter, applied for a prop-
erty execution. Subsequently, pursuant to General Stat-
utes § 52-356c, James Jordan filed a claim for a
determination of interests in the account. He asserted
that by virtue of the 2009 dissolution judgment, he had
a claim to proceeds in that account that was prior in
right to that of the plaintiff. The defendants filed a
separate claim for [a] determination of interests in the
account, alleging that ‘Carlo Forzani, LLC ha[d] a claim
prior in right’ to the plaintiff’s claim by virtue of the
dissolution judgment and the ‘charging lien arising by
operation of law’ in the dissolution of marriage action.
‘‘The court held a hearing to determine the competing
claims in the account and, subsequently, concluded that
the defendants had no superior interest in the account
by virtue of either an [attorney’s] charging lien or the
dissolution judgment. Specifically, the court held, inter
alia, that a charging lien in connection with a dissolution
action would be prohibited by rule 1.5 (d) (1) of the
Rules of Professional Conduct, that an attorney must
create a new asset for the client before a charging lien
can be recognized and that the recognition of a charging
lien in a dissolution action would violate public policy.’’
(Footnotes omitted.) Olszewski v. Jordan, 144 Conn.
App. 144, 146–48, 71 A.3d 1276 (2013). The defendants
appealed to the Appellate Court, which reversed the
trial court’s judgment. Id., 148, 160.
The Appellate Court explained that it could ‘‘discern
no viable reason why a charging lien should be abso-
lutely prohibited as a matter of law in a marital dissolu-
tion action.’’ Id., 151. The court stated that ‘‘recognizing
a charging lien in a dissolution of marriage action would
not implicate rule 1.5 (d) (1)’’; id.; and ‘‘that rule 1.8
(i) (1) permits a charging lien in connection with a
dissolution action.’’ Id., 152. The court further stated
that an attorney need not create a new asset before a
charging lien can be acquired; id.; and that this state’s
equitable lien jurisprudence supports the view that equi-
table charging liens may arise by operation of law in
marital dissolution actions ‘‘when the arrangement
between the attorney and client intends that a lien exist
on the proceeds of the action.’’ Id., 156. The court thus
concluded that, ‘‘under some circumstances an attorney
may acquire a charging lien in a dissolution of marriage
action and that the trial court erred in holding otherwise
as a matter of law.’’ Id., 160. The court thereafter
remanded the case to the trial court to consider whether
the agreement between James Jordan and the defen-
dants established that the defendants intended to look
specifically to the funds in the jointly owned account
as the source of future payment of their fees. Id., 160.
In a dissenting opinion, Judge Espinosa concluded that
an attorney may not acquire an equitable charging lien
in a marital dissolution action and that the trial court’s
judgment should be affirmed. Id., 161, 165 (Espinosa,
J., dissenting). This appeal followed.2
We begin by setting forth the applicable standard of
review. ‘‘When . . . the trial court draws conclusions
of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) D’Urso v. Lyons,
97 Conn. App. 253, 255–56, 903 A.2d 697, cert. denied,
280 Conn. 928, 909 A.2d 523 (2006). Accordingly,
whether the plaintiff in the present case is entitled by
operation of law to an equitable charging lien against
James Jordan’s marital assets for fees and expenses
incurred in obtaining the judgment of dissolution is
a question of law subject to our plenary review. See
id., 255.
The concept of an attorney’s charging lien is rooted
in common law and is ‘‘founded on the equitable right
of an attorney to recover . . . fees and costs due . . .
for . . . services out of the judgment . . . obtained.
Thus, an attorney’s charging lien does not merely give
the attorney an enforceable right against the property
of another, but rather it gives the attorney an equitable
ownership interest in the client’s cause of action, and
the client’s property right in his or her own cause of
action is only what remains after transfer to the attorney
of the attorney’s agreed-on share.’’ (Footnote omitted.)
7 Am. Jur. 2d 352, Attorneys at Law § 317 (2007). An
attorney’s charging lien is distinguishable from an attor-
ney’s retaining lien, which is ‘‘a possessory lien on a
client’s papers and files that the attorney holds until
his fee has been paid.’’ Marsh, Day & Calhoun v. Solo-
mon, 204 Conn. 639, 643, 529 A.2d 702 (1987).
Although there is no statutory basis for an attorney’s
charging lien in Connecticut, as there is in many states;
see 7 Am. Jur. 2d, supra, § 318, p. 353 (authority for
charging lien in many states rests entirely on statutes);
see also W. Hairston, comment, ‘‘The Ranking of Attor-
ney’s Liens Against Other Liens in the United States,’’
7 J. Legal Prof. 193, 193–95 (1982) (attorney’s liens are
creatures of statute in thirty-two states); this court
expressly recognized the common-law basis for an
attorney’s charging lien nearly 180 years ago in Gager
v. Watson, 11 Conn. 168, 173 (1836).3 In Gager, we
established the principle that ‘‘[a]n attorney, as against
his client, has a lien upon all papers in his possession
for his fees and services performed in his professional
capacity, as well as upon judgments received by him.’’
Id. This principle was affirmed in Andrews v. Morse,
12 Conn. 444 (1838), in which we reiterated that ‘‘attor-
neys . . . have, in certain cases . . . a claim upon [the
judgments and papers of their clients] as courts of law
and equity will protect and enforce, until their lawful
fees and disbursements are paid . . . .’’ Id., 446.
Almost one-half century later, we concluded, without
reference to Gager and Andrews, that, ‘‘[i]f an attorney
has rendered services and expended money in institut-
ing and conducting a suit and the plaintiff orally agrees
that he may retain so much of the avails thereof as will
pay him for his services and expenses therein and for
previous services in other matters, and he thereafter
conducts the suit to a favorable conclusion, he has, as
against such plaintiff, an equitable lien upon the avails
for the services and expenses in the suit, and for the
previous services embraced in the agreement . . . .’’
Cooke v. Thresher, 51 Conn. 105, 107 (1883). Cooke thus
added to Gager and Andrews that an equitable charging
lien also may arise when a client orally agrees to pay
attorney’s fees and expenses from the newly acquired
proceeds of a favorable judgment.4 See id.; see also
DeWandelaer v. Sawdey, 78 Conn. 654, 655, 658, 63 A.
446 (1906) (relying on Cooke for principle that attorney,
by ‘‘ ‘taking up a case’ with the understanding that he
must look to the judgment to be obtained for compensa-
tion for his services and disbursements,’’ had, by virtue
of oral agreement, ‘‘equitable lien for his services and
expenses upon the judgment afterward obtained’’).
Since Cooke and DeWandelaer, issues involving
charging liens rarely have been litigated in Connecticut.
In two relatively recent cases, however, the Appellate
Court relied on the principles articulated in Gager and
Cooke in concluding that equitable charging liens are
permissible. In Perlmutter v. Johnson, 6 Conn. App.
292, 505 A.2d 13, cert. denied, 200 Conn. 801, 509 A.2d
517 (1986), cert. denied, 479 U.S. 1035, 107 S. Ct. 886,
93 L. Ed. 2d 839 (1987), in which the plaintiff attorney
was paid only a portion of his hourly fees in connection
with two separate actions that he had brought on his
client’s behalf, the attorney placed the funds recovered
from a judgment in one of the actions in escrow and
commenced an action against his client for the fees
allegedly due. Id., 293, 298. Relying on Cooke, the Appel-
late Court concluded that ‘‘the [trial] court was correct
in permitting [the attorney] to keep these funds as an
offset. It has long been held that an attorney has ‘an
equitable lien upon the avails [of his actions for a client]
for the services and expenses in the suit.’ Cooke v.
Thresher, [supra, 51 Conn. 107]. . . . [The attorney’s]
undisputed testimony was that he obtained the funds
on [his client’s] behalf as a result of an action which
he undertook as [his] attorney. He, therefore, had a lien
upon those funds.’’ Perlmutter v. Johnson, supra, 298.
In D’Urso v. Lyons, supra, 97 Conn. App. 253, in which
the attorney’s fees also were calculated on the basis of
an hourly rate and the written fee agreement between
the attorney and the client was silent as to whether the
fees would be paid from the proceeds of any recovery;
id., 254; the Appellate Court relied on Cooke and Perl-
mutter in concluding that, because the attorney had
obtained a judgment as a result of the litigation and
had not been paid for his services at that time, his
retention of the funds and claim for attorney’s fees
in Probate Court was proper because he ‘‘had a valid
charging lien on the proceeds of the foreclosure action
in the amount of the attorney’s fees to which he was
owed pursuant to the fee agreement signed by [the
client].’’ Id., 257.
Significantly, none of the foregoing cases involved a
marital dissolution action. Thus, none of the judgments
in those cases involved a division of assets in the parties’
possession before the action was commenced. Accord-
ingly, Connecticut precedent provides no explicit guid-
ance as to whether dissolution actions are distinguish-
able from general civil actions for purposes of determin-
ing whether an attorney may acquire an equitable charg-
ing lien against marital assets. Nevertheless, we con-
clude that the facts of the foregoing cases, the theoreti-
cal underpinnings of charging liens, the public policies
implicit in Connecticut’s Rules of Professional Conduct,
and the unique character of divorce proceedings mili-
tate against a conclusion that attorneys are entitled to
equitable charging liens in marital dissolution actions
in Connecticut.
We first note that every case in which this court or
the Appellate Court has considered or referred to an
equitable charging lien involved newly created assets
that the client received, or hoped to receive, from a
judgment in the client’s favor as a result of the attorney’s
efforts. See DeWandelaer v. Sawdey, supra, 78 Conn.
655 (attorney sought payment from out-of-court settle-
ment that client received in action seeking damages
for libel); Cooke v. Thresher, supra, 51 Conn. 106–107
(attorneys sought payment from proceeds of judgment
awarded to client in settlement of claim); Benjamin v.
Benjamin, 17 Conn. 110, 113 (1845) (attorney sought
payment from proceeds of judgment awarding client
damages and costs); Andrews v. Morse, supra, 12 Conn.
445–47 (attorney sought payment from proceeds of
judgment for client); Gager v. Watson, supra, 11 Conn.
170 (attorney sought payment from proceeds of judg-
ment for client); Rumrill v. Huntington, 5 Day (Conn.)
163, 165 (1811) (attorney sought payment from pro-
ceeds of judgment awarding damages and costs to cli-
ent); D’Urso v. Lyons, supra, 97 Conn. App. 254–55
(attorney sought payment from proceeds obtained for
client in foreclosure action); Perlmutter v. Johnson,
supra, 6 Conn. App. 293, 298 (attorney sought payment
from proceeds obtained for client). Moreover, we stated
in Cooke that, pursuant to an agreement with the client,
an attorney may have an equitable lien ‘‘upon the avails
for the services and expenses in the suit, and for the
previous services embraced in the agreement.’’ (Empha-
sis added.) Cooke v. Thresher, supra, 51 Conn. 107. The
common and ordinary meaning of the term ‘‘avails’’
is ‘‘profits or proceeds . . . .’’ Webster’s Third New
International Dictionary (2002) p. 150. Thus, equitable
charging liens in Connecticut have been recognized by
reviewing courts only when applied to proceeds the
client has received as a result of the litigation, there
being no cases in which an attorney sought to obtain
such a lien against assets in the client’s possession
before the attorney became involved, such as assets
acquired by the parties during their marriage. Although
this does not mean that Connecticut precedent pre-
cludes recognition of equitable charging liens in marital
dissolution actions, it does mean, at the very least, that
there is no clear precedent on which we may rely in
deciding whether equitable charging liens should apply
in this context.
We thus turn for guidance to the theoretical underpin-
nings of equitable charging liens. It is generally under-
stood that a charging lien ‘‘gives the attorney an equi-
table ownership interest in the client’s cause of action,
and the client’s property right in his or her own cause
of action is only what remains after transfer to the
attorney of the attorney’s agreed-on share.’’ 7 Am. Jur.
2d, supra, § 317, p. 352; see also R. Lee, comment, ‘‘Prior-
ity of the Attorney’s Charging Lien,’’ 24 J. Legal Prof. 477,
477–78 (2000). Thus, permitting an attorney to obtain an
equitable charging lien against marital assets would give
the attorney a property right in assets that were in the
client’s possession before the attorney was hired and
that the attorney expended no effort in obtaining. This
is not only incompatible with the idea that an attorney
has a property right in ‘‘the judgment or settlement the
attorney has obtained for the client’’; (emphasis added)
7 Am. Jur. 2d, supra, § 317, p. 351; which authorities
generally treat as a property right that the client did
not previously possess;5 see, e.g., R. Lee, supra, 477–78
(referring to judgment proceeds from insurance settle-
ments, damage awards and real or personal property
recovered through attorney’s efforts); but it would inter-
fere with the ‘‘carefully crafted mosaic’’ created by the
balancing and distribution of the parties’ financial
assets in marital dissolution actions. (Internal quotation
marks omitted.) Misthopoulos v. Misthopoulos, 297
Conn. 358, 378, 999 A.2d 721 (2010); see also Tuckman
v. Tuckman, 308 Conn. 194, 214, 61 A.3d 449 (2013)
(characterizing financial orders in dissolution proceed-
ings as resembling mosaic, in which various financial
components are carefully interwoven with one
another). Indeed, one of the chief risks of allowing an
equitable charging lien in a marital dissolution action
is that a lien could deplete the parties’ financial assets
to such an extent that there would be little or nothing
left for the other purposes the mosaic was intended to
advance, such as a child’s support or future educational
expenses. Accordingly, permitting equitable charging
liens against preexisting assets available for distribution
to the parties in marital dissolution actions is inconsis-
tent with the general understanding of a charging lien
as an equitable ownership interest in the client’s cause
of action, which arises out of a property right the attor-
ney is hired to assist the client in obtaining through the
process of litigation.
There also is no direct support in the Connecticut
Rules of Professional Conduct for equitable charging
liens in marital dissolution actions. Rule 1.8 (i) provides
in relevant part: ‘‘A lawyer shall not acquire a proprie-
tary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except
that the lawyer may: (1) [a]cquire a lien granted by
law to secure the lawyer’s fee or expenses . . . .’’ The
commentary adds: ‘‘[S]ubsection (i) sets forth excep-
tions for liens authorized by law to secure the lawyer’s
fees or expenses and contracts for reasonable contin-
gent fees. The law of each jurisdiction determines which
liens are authorized by law. These may include liens
granted by statute, liens originating in common law and
liens acquired by contract with the client.’’ Rules of
Professional Conduct 1.8, commentary.
Although rule 1.8 (i) (1) provides that an attorney
may acquire a lien ‘‘granted by law’’ to secure attorney’s
fees and expenses and does not prohibit an equitable
charging lien in a domestic relations matter, the official
commentary emphasizes that the ‘‘law of each jurisdic-
tion determines which liens are authorized . . . .’’
Rules of Professional Conduct 1.8, commentary. The
rule and commentary thus suggest that the rule, stand-
ing alone, cannot be construed to mean that all liens
are authorized because it leaves the question of which
liens are authorized to the legislature, the courts, and
the contract between the attorney and the client.
Rule 1.5 (d) also fails to provide clear guidance on
the matter. That rule provides in relevant part: ‘‘A lawyer
shall not enter into an arrangement for, charge, or col-
lect: (1) Any fee in a domestic relations matter, the
payment or amount of which is contingent upon the
securing of a dissolution of marriage or civil union or
upon the amount of alimony or support, or property
settlement in lieu thereof . . . .’’ Rules of Professional
Conduct 1.5 (d) (1). The official commentary to rule
1.5 explains that ‘‘[s]ubsection (d) prohibits a lawyer
from charging a contingent fee in a domestic relations
matter when payment is contingent upon the securing
of a divorce or upon the amount of alimony or support
or property settlement to be obtained.’’ Rules of Profes-
sional Conduct 1.5, commentary.
Unlike in rule 1.8, there is no reference to charging
liens in rule 1.5 or in the commentary to that rule.
Accordingly, we conclude that rule 1.5 does not apply
to charging liens. To the extent the parties parse the
language of rule 1.5 to demonstrate why the rule may
or may not refer to charging liens, we observe that, in
addition to the fact that charging liens are specifically
discussed in rule 1.8, a charging lien is not a fee, contin-
gent or otherwise. Rather, it has been defined in Con-
necticut as security for the nonpayment of an attorney’s
expenses and fees, usually calculated on an hourly basis
and incurred in representing the client. See, e.g., Gager
v. Watson, supra, 11 Conn. 173 (attorney has lien on
judgment for ‘‘fees and services performed in his profes-
sional capacity’’). As such, it is a legal tool employed
to obtain the payment of attorney’s fees and expenses
that arise from the litigation process. Although a charg-
ing lien does not take effect until a judgment is rendered
and thus might seem to fall within the prohibitions
described in rule 1.5, the amount and collection of the
underlying fees and expenses that are subject to such
a lien, unlike contingency fees, do not depend on the
outcome of the litigation but are owed to the attorney
regardless of whether payment is obtained by way of
a charging lien or by some other method. Rule 1.5 thus
provides no guidance as to whether attorneys may
acquire equitable charging liens in Connecticut.
We nonetheless conclude that the same public policy
considerations on which rule 1.5 (d) (1) is founded
counsel against our recognition of equitable charging
liens in marital dissolution actions. In Gil v. Gil, 110
Conn. App. 798, 956 A.2d 593 (2008), the Appellate Court
stated that ‘‘[t]he main policy concern behind rule 1.5
(d) is that contingency agreements for a dissolution
action would discourage lawyers from advocating for
an amicable settlement because the lawyers would have
a pecuniary interest in the outcome of the dissolution
action.’’ Id., 804–805. An equitable charging lien for an
attorney’s expenses and fees based on hourly rates
could have a similarly harmful effect. For example, the
satisfactory resolution of a dissolution proceeding ordi-
narily requires a weighing and balancing of many non-
monetary factors in addition to the parties’ liquid and
other financial assets. These nonmonetary factors
include, at one extreme, potential reconciliation of the
parties, and, at the other, child custody, visitation rights
and possession of the marital home for continued occu-
pation by the parent who has physical custody of the
children. If an equitable charging lien is permitted in
this context, the attorney may be tempted or inclined to
negotiate a settlement that would sacrifice or diminish
some of the client’s important nonmonetary interests
in favor of liquid assets to which an equitable charging
lien could attach. See W. Gamble, comment, ‘‘Cash Con-
flicts: Reconciling Conflicts of Interest Between Attor-
neys’ Fees and the Needs of the Client,’’ 23 J. Legal Prof.
347, 354 (1999) (‘‘[A]n attorney [may have] a personal,
pecuniary interest in preventing a reconciliation
between husband and wife. In addition, the [attorney]
might also have a conflict of interest with the client by
seeking greater monetary awards in lieu of intangible
interests such as child custody.’’ [Footnote omitted;
internal quotation marks omitted.]). An equitable charg-
ing lien therefore could interfere with significant per-
sonal interests of the parties, encumber existing assets
intended for other purposes, and undermine the mosaic
crafted by the court. Accordingly, public policy consid-
erations do not weigh in favor of recognizing equitable
charging liens in marital dissolution actions.
We finally note that the unique character of marital
dissolution actions and the difficult issues that equitable
charging liens raise in this context are not easily
addressed by piecemeal judicial decisions arising from
serendipitous appeals brought over a lengthy period of
time. In the past 180 years, the subject has been
addressed in this state in only a handful of cases, none
of which, until now, has involved a marital dissolution
action. Thus, even though, in the present case, we
decline to recognize equitable charging liens in this
context, we do not conclude that charging liens are
altogether impermissible. Rather, we conclude that
whether, and to what extent, charging liens should be
permitted in marital dissolution actions are questions
that the legislature is in a far better position to resolve
than the courts. Among the questions that deserve a
more in-depth examination and analysis are (1) the
type of marital assets subject to, or exempted from, a
charging lien, (2) notice requirements, (3) perfection
procedures, (4) the priority of an attorney’s charging
lien relative to the claims of other creditors, and (5)
enforcement proceedings. The complex nature of
charging liens explains why they are regulated by stat-
ute in at least thirty-two states; W. Hairston, supra, 7
J. Legal Prof. 193–95; and why Connecticut should fol-
low the lead of these states and rely on the legislature
for guidance, at least with respect to the propriety of
charging liens in marital dissolution actions. In New
York, for example, attorney’s charging liens are permit-
ted in domestic relations matters pursuant to N.Y.
Comp. Codes R. & Regs. tit. 22, § 1400.5 (2015), only
when ‘‘(1) the retainer agreement provides that a secu-
rity interest may be sought; (2) notice of an application
for a security interest has been given to the other
spouse; and (3) the court grants approval for the secu-
rity interest after submission of an application for coun-
sel fees.’’ Connecticut would benefit from similar
legislative direction that places reasonable restrictions
on these liens, if deemed permissible, in light of the
unique characteristics of marital dissolution pro-
ceedings.
The defendants argue that equitable charging liens
should be recognized in Connecticut because there is
no valid distinction between the assets purportedly
‘‘create[d]’’ by the judgment in a general civil action
and the preexisting assets in a marital dissolution action
that would justify precluding equitable charging liens
in divorce proceedings. The defendants contend that
attorneys do not manufacture or create assets but
merely ‘‘litigate causes of action that belong to clients
and are, if successful, reduced to monetary compensa-
tion,’’ regardless of the type of action. The defendants
further contend that ‘‘Connecticut case law is clear that
a charging lien attaches to a judgment obtained through
the avails of the lawyer’’ and that no Connecticut court
has held that a valid equitable charging lien applies only
to newly created assets.
The principal case on which the defendants rely in
arguing that a cause of action is a property right that
already belongs to a client and that, if successful, is
merely reduced to monetary compensation, Sherman
v. Ronco, 294 Conn. 548, 985 A.2d 1042 (2010), does not
support the defendants’ claim. In the passage to which
the defendants refer, the court initially observes that a
cause of action arises from the existence of a primary
right in the plaintiff that the defendant allegedly
invaded. Id., 555. It then considers whether additional
facts in an amended complaint may relate back to the
original pleading if the cause of action remains substan-
tially the same. Id. Nothing in Sherman concerning the
relation back doctrine supports the conclusion that the
proceeds of a judgment are never newly created
because a successful cause of action is a property right
that is merely reduced by the judgment to monetary
compensation. The defendants also disregard the fact
that, although Connecticut reviewing courts never have
explicitly stated that an equitable charging lien applies
only to newly created assets, all prior equitable charging
lien cases in Connecticut have involved judgment pro-
ceeds that the client received as a result of the litigation.
Accordingly, the principle recognized in Cooke and
D’Urso that an equitable charging lien may attach to a
judgment obtained by the client’s attorney cannot apply,
without further judicial or legislative review, in cases
involving preexisting assets already in the client’s pos-
session because marital dissolution proceedings raise
special concerns that do not arise in other civil actions.
See Cooke v. Thresher, supra, 51 Conn. 106–107; D’Urso
v. Lyons, supra, 97 Conn. App. 256–58.
The defendants also argue that allowing attorneys to
acquire equitable charging liens will have no effect on
the distribution of marital assets and will not discourage
attorneys from advocating for amicable settlements, but
will merely ensure that they have priority with respect
to their clients’ property in relation to other creditors.
We disagree. Although the effect of an equitable charg-
ing lien may be to grant first priority to the client’s
attorney over other creditors, it is not necessarily true,
as the defendants claim, that an amicable settlement
eliminates any potential risk that the trial court would
award a judgment insufficient to cover a client’s attor-
ney’s fees and costs. In cases that involve limited finan-
cial assets, an amicable settlement might afford the
client generous child custody terms and the marital
home in exchange for assignment of the bulk of the
financial assets to the other party, leaving the client to
pay the attorney from future income or other unidenti-
fied sources, and setting the stage for a possible future
conflict between them.6
The defendants finally argue that ‘‘[n]umerous states
that recognize the validity of an [equitable] charging lien
have decided cases involving family relations matters,’’
thus suggesting that such states also recognize the valid-
ity of equitable charging liens in marital dissolution
proceedings. This, however, is not the case. The defen-
dants cite to twelve jurisdictions that explicitly have
held or expressed the view that a lien for attorney’s
fees cannot be enforced against awards of alimony and/
or child support, and eight that explicitly have held or
expressed the view that a lien for attorney’s fees can
be enforced against an award of alimony and/or child
support.7 See G. Garrison, annot., ‘‘Alimony or Child-
Support Awards As Subject to Attorneys’ Liens,’’ 49
A.L.R.5th 595, 607–17, §§ 3a, 3b, 4a and 4b (1997) (listing
cases from jurisdictions that fall within foregoing cate-
gories). Moreover, in the eight jurisdictions in which the
court explicitly held or determined that an attorney’s
charging lien could be enforced against an award of
alimony and/or child support, the courts in five jurisdic-
tions based their holdings on statutory authority rather
than the common law. Id., §§ 4a and 4b, pp. 613–17. We
therefore conclude that attorneys are not entitled by
operation of law to equitable charging liens on marital
assets for fees and expenses incurred in obtaining judg-
ments for their clients in marital dissolution proceed-
ings in Connecticut.8
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
1
The named defendant, James F. Jordan III, and the third-party defendant,
Diana M. Jordan, also were parties to the present action but not to this
appeal. We hereinafter refer to James F. Jordan III as James Jordan and
Diana M. Jordan as Diana Jordan. We hereinafter refer to Forzani and Carlo
Forzani, LLC, collectively as the defendants.
2
We granted the plaintiff’s petition for certification to appeal, limited to
the following issues: ‘‘1. Did the Appellate Court properly conclude that the
[defendants] were entitled to an equitable charging lien on marital assets
for their attorneys’ fees that arose by operation of law when they obtained
a judgment for their client in the underlying marital dissolution action?
‘‘2. If the answer to the first question is in the affirmative, does the charging
lien attach as of the date of the commencement of the action and take
priority over any creditors subsequently securing an interest in the marital
asset in which the attorneys claim an interest?’’ Olszewski v. Jordan, 310
Conn. 930, 78 A.3d 857 (2013).
3
An attorney’s charging lien also was sought in Rumrill v. Huntington,
5 Day (Conn.) 163 (1811). In Rumrill, we concluded that ‘‘an attorney has
no lien upon a judgment obtained in favor of his client, which can vary or
affect the rights of a stranger. No such lien is created, either at common
law, or by principles of chancery.’’ Id., 165. We thereby implied that an
attorney could recover fees and expenses from a client by way of an equitable
charging lien when there were no other claims by a third party. See id.; see
also Benjamin v. Benjamin, 17 Conn. 110, 113–14 (1845) (affirming holding
in Rumrill). In Rumrill, the attorney ultimately recovered his fees because
he had obtained a written assignment of the judgment proceeds prior to
a third party’s assertion of a similar claim. See Rumrill v. Huntington,
supra, 165.
4
In Cooke, we characterized the oral agreement as an ‘‘assignment’’ to
the attorneys of the proceeds from the judgment. (Internal quotation marks
omitted.) Cooke v. Thresher, supra, 51 Conn. 106. We need not determine
at this point in our analysis, however, whether an equitable charging lien
that does not arise from an oral agreement, such as the liens at issue in
Gager and Andrews, is distinguishable from the type of charging lien at
issue in Cooke.
5
An attorney’s assistance in obtaining sole possession of a portion of the
marital assets is distinguishable from an attorney’s assistance in obtaining
a newly created asset, such as a damage award.
6
We dismiss outright the defendants’ speculative claim that the prohibition
of equitable charging liens in domestic relations matters would create disin-
centives for attorneys to take these cases, thus increasing the number of
self-represented litigants, there being no evidence of such an effect.
7
One of these jurisdictions, South Dakota, concluded that liens for attor-
ney’s fees can be enforced against an award of alimony but not against an
award of child support; see Jasper v. Smith, 540 N.W.2d 399, 404–405 and
n.4 (S.D. 1995); and, therefore, is counted in both categories.
8
We thus need not reach the second certified question. See footnote 2
of this opinion.