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Please note that Attorney Bruzonsky has been doing this regular “Liens Corner” column since April 2006. His last “Liens Corner” article was for the November/December 2017 issue of The Advocate, having stepped down from this regular column, as he now works part-time (and is part-time retired) exclusively handling large subrogation/lien claims in very large personal injury and medical malpractice cases for other attorneys. However, attorney Bruzonsky may add notes to this website under the subject lien article headers from time to time. (Please keep in mind that this site contains general information for educational purposes only. It is not intended to provide legal advise, which can only come from a qualified attorney who is familiair with all the facts and circumstances of your specific case and relevant law.) 

 

 

2008-02: ER 1.15, Parts 1-3

January 17th, 2011 02:43:15 pm


These articles have been published in "The Advocate", a monthly publication of the Arizona Association for Justice/Arizona Trial Lawyers Association, February – May 2008 issues, @2008 by Steven J. Bruzonsky, Esq.


ER 1.15 – HOW TO COMPLY, PART 1


(This is the first part of a three part series on ER 1.15 and how to comply with ER 1.15 at settlement. The first part in this issue concerns the basic requirements of ER 1.15. The second part will briefly review Ethics Opinions (advisory). The third part will discuss how to protect yourself at settlement by having your client sign a specific potential lien/reimbursement claim authorization if there is a potential lien claim but in your opinion the protections of ER 1.15 do not apply.)


The Basic Requirements of ER 1.15


1. ER 1.15 Provisions Pertinent to Liens:


"ER 1.15: Safekeeping Property


(d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement between the client and the third person, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.


(e) When in the course of representation a lawyer possesses property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.


Comment


(4) [Effective December 1, 2004] The Rule also recognizes that third parties may have just claims against specific funds or other property in a lawyer's custody, such as a client's creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim has become a matured legal or equitable claim, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer shall file an action to have a court resolve the dispute." [Emphasis added]


2. Discussion of the Requirements of ER 1.15: The protections of ER 1.15 are invoked if there is a matured legal or equitable claim, if the attorney has actual knowledge of the third party interest, and if the attorney has good faith doubt that the third party claimant is legally entitled to the funds. Also, the attorney is required to file litigation when there is substantial ground for dispute and if a reasonable time period has expired. Matured legal or equitable claim: "when the third-party claim has become a matured legal or equitable claim, the lawyer must refuse to surrender the property to the client until the claims are resolved." Comment 4 to ER 1.15.


Thanks to AzTLA member Richard Plattner, who recently did a Westlaw search for this phrase, yielding no results in Arizona cases or Arizona Revised Statutes Annotated (except for ER 1.15 itself), and in a search of all state and federal cases yielded only one case interpreting the phrase, Silver v. Statewide Grievance Committee, 242 Conn. 186, 699 A.2d 151 (Conn. 1997) (in which the court discussed the attorney's ethical duty by referring to Hazard & Hodes, discussed below).


1 G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2d Ed. 1996) § 1.15:302, p. 460-461, discusses the rule and comment:


An interest as used in the rules means more than an unsecured claim with respect to a third party. An interest in the fund or property requires that the third party have a matured legal or equitable lien. See 1 G. Hazard & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct (2d Ed. 1996) § 1.15:302, p. 460 ("[t]he Comment to [r]ule 1.15 uses the phrases ‘just claims' and ‘duty under applicable law' to suggest that the third party must have a matured legal or equitable claim in order to qualify for special protection [under the rule]" [emphasis added]); see also Alaska Bar Association Ethics Committee, Opinion No. 3 (1992) ("[i]n order to trigger an obligation on the part of the attorney to pay a creditor's claim, in contravention of a client's instructions, the creditor's claims must be a valid assignment on its face or statutory lien which has been brought to the attorney's attention"); Colorado Bar Association Ethics Committee, Formal Opinion Nos. 94 and 95 (1994) ("[w]here the third party does not hold an interest as a result of a statutory lien or a contract or a court order, the property should be promptly distributed to the client"); Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 20 (1995) ([t]he mere assertion of a third party claim to property is insufficient to create a duty to deliver property to that third party").


Actual knowledge:


Ethics Opinion 98-06 discusses that the attorney must have "actual knowledge" of the third party's interest before acting under ER 1.15:


The comment's language is strong evidence that a lawyer must have "actual knowledge" of a third party's interest before acting under ER 1.15(b). See In re Burns, 137 Ariz. 487, 491, 679 P.2d 510, 514 (1984) (a disciplined attorney had actual knowledge of third party lien on settlement proceeds).[2]"Actual knowledge" or "knows" means actual knowledge of the fact in question, and a lawyer's knowledge may be inferred from the circumstances. Terminology, Preamble to the Model Rules. Of course, an attorney can gain "actual knowledge" from circumstantial evidence, and her knowledge of the medical provider, or plan, gained from past experience may be quite probative of the attorney's knowledge in a particular case. - - - - - The Committee concludes that an attorney must have actual knowledge of a "matured legal or equitable claim" to all or part of the funds or other property held by the attorney in order for the special duties of ER 1.15(b) to be invoked. However, attorneys are cautioned that the standard of "matured legal or equitable claim" does not mean that an attorney can refrain from acting with reasonable diligence, promptness and competence once the attorney is on notice of a third party claim. ER 1.1 and 1.3. The Supreme Court in Burns made it clear that once on notice of a third party claim, the attorney must "properly inform himself of the law of a particular case before advising a client." Burns, 679 P.2d at 514. Failure to do so warranted and supported disciplinary action. Id. Ethics Opinion 98-06.


Good faith doubt:


Ethics Opinions 98-06 and 88-02 discuss that if the attorney is "satisfied" that either the client or the health care provider is legally entitled to the funds that the attorney is holding, he should disburse them accordingly; and that if the lawyer has any "good faith doubt" as to the proper recipient, he should hold the disputed monies in trust, pending a resolution of the dispute."


Filing litigation:


The attorney is required to file litigation when there is substantial ground for dispute and if a reasonable time period has expired. "A lawyer shall not unilaterally assume to arbitrate a dispute between the client and the third party, but when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer shall file an action to have a court resolve the dispute." Comment 4 to ER 1.15.


Ethics Opinions 98-06 and 88-02 discuss that a lawyer retaining disputed funds in trust may not simply wait until the client and the medical provider resolve the dispute. Rather, after waiting a reasonable period of time, the attorney should interplead the funds. However, Comment 4 to ER 1.15 has since been amended to simply mention litigation, so that counsel can file an appropriate lawsuit (such as a Declaratory Judgment action).


(The second and third parts will be in next two issues.)


ER 1.15 – HOW TO COMPLY, PART 2


(This is the second part of a three part series on ER 1.15 and how to comply with ER 1.15 at settlement. The first part in the last issue concerns the basic requirements of ER 1.15. This second part will briefly review Ethics Opinions (advisory). The third part will discuss how to protect yourself at settlement by having your client sign a specific potential lien/reimbursement claim authorization if there is a potential lien claim but in your opinion the protections of ER 1.15 do not apply.)


Correction: There was a typo in the first part published last issue. The Comment to ER 1.15 states that "when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute." The typo was "shall" instead of "may" in the last sentence. The Comment originally was worded using "shall" but was amended, thanks to hard work by AzTLA members. This distinction between mandatory and permissive may be critical in some situations.


Ethics Opinions (Advisory) Interpreting ER 1.15


Currently, the State Bar's Ethics Counsel, Patricia Sallen, and Assistant Ethics Counsel, Angela Napper, staff the Ethics Hotline at 602-340-7284. All ethics advise given is non-binding and intended only to be informational, although reliance on telephonic advise may be considered as mtigating in a disciplinary proceeding. The Ethics Department, State Bar of Arizona, also issues advisory opinions. These opinions are helpful in trying to understand how ER 1.15 may be interpreted. Following are brief summaries of Ethics Opinions interpreting ER 1.15.


98-06: The committee concludes that an attorney's obligations to a third party under ER 1.15 are triggered when an attorney has actual knowledge of that third party's "interest" in the funds. A third party has an "interest" in the funds if the party has a "matured legal or equitable claim" to the funds. Once on notice, the attorney has these duties: 1) to promptly notify the third person; 2) to promptly deliver to the client and third person only funds or property the party is entitled to receive; and 3) if the attorney has any "good faith doubt" as to who is entitled to receive any disputed funds, the attorney must notify the third party, investigate with reasonable diligence, promptness and competence, hold only the disputed funds in trust pending resolution of the dispute, and resolve the dispute by negotiation, arbitration or, if necessary, by filing an interpleader action.


Below are the various ER 1.15 situations specifically reviewed:


1. Lawyer has knowledge of medical services provided, no demand of any kind upon the lawyer, no claim of lien. Without actual knowledge of a matured legal or equitable claim by a third party, the special protections of ER 1.15(b) are not invoked.


2 & 3. Medical provider lien signed by client but not attorney and attorney has notice of lien; and where the medical provider lien is signed by both client and attorney. Attorney is deemed to have actual knowledge of a matured legal or equitable claim and the attorney has an ethical requirement under ER 1.15(b) to notify the medical lien holder, investigate the issue, and disburse the funds to the proper recipient. A lien is "[a] charge or encumbrance upon property to secure the payment or performance of a debt, duty or other obligation," and it "is distinct from the obligation which it secures." Matlow v. Matlow, 89 Ariz. 293, 297-98, 361 P.2d 648, 651 (1961) (citing 53 C.J.S. Liens § 1, at 826). Under Arizona law, a lien can of course be created by statute, but an equitable lien may also arise from an express contract if the parties indicate an attempt to charge particular property as security for an obligation. Kalmanoff v. Weitz, 8 Ariz.App. 171, 172, 444 P.2d 728 (1968). Significant to the question at issue here is the following: "The assent of the holder of a fund belonging to another is not essential to the establishment of a lien thereon." 53 C.J.S. Section 4.1 at 460, citing Springer v. J.R. Clark Co., 138 F.2d 722 (8th Cir. 1943). The committee notes cases from various jurisdictions to support this, including In re Augenstein, 177 Ariz. 581, 582, 870 P.2d 399, 400 (1994) (Disciplinary Commission censured attorney for ER 1.15 violation who had executed a medical lien in favor of a doctor on behalf of client, received settlement, but failed to notify or pay a doctor the remaining balance due).


4. Attorney orally agrees to reimburse medical provider from settlement funds. Any agreement made with express or apparent authority must be honored.


5. Unrecorded medical provider lien not signed by client or attorney is not a "matured legal or equitable claim".


6. A.R.S. §§ 33-931 statutory lien has been recorded with County Recorder but is facially incomplete or untimely recorded. The issue is whether the lien represents a "matured" claim which the attorney must investigate and accord protection under ER 1.15 after the attorney is put on actual or constructive notice of the lien.The attorney may fully contest the medical provider's claim by interpleader, negotiation or arbitration; but in those cases ER 1.15(b) requires that the attorney must hold the disputed funds in trust and notify the medical provider regarding the funds or property received by the attorney.


7, 8 & 9. The medical provider has simply sent (1) copies of the client's medical bills to the attorney, (2) a letter to attorney demanding payment for medical bills for client's accident-related medical treatment, or (3) attorney has knowledge client received accident-related medical care from a doctor but the doctor has no lien or assignment and has made no demand in regard to the bills. In none of these instances does the attorney have actual knowledge of a "matured legal or equitable claim" which represents an "interest" under ER 1.15(b).


In its discussion, the committee notes the following: Conversely, certain federal health care programs have, by statute, the right to recover directly from the tortfeasor who caused the injuries for which the injured party sought medical care through a federal provider. Under the Federal Medical Care Recovery Act (FMCRA), 42 U.S.C. § 265 et seq. (1982), federal providers such as the Veterans Administration, Champus and the Department of Health and Human Services (Public Health Service) are also subrogated to the rights of the injured person to the extent of the reasonable value of the care provided.[6]Id., § 2651 (a). The Committee finds, based on the reasoning of Opinion 97-02, that this statutory subrogation claim, - - - - - perforce is a protected interest under ER 1.15 such that the attorney must comply with the requirements of ER 1.15 regarding notice and distribution of settlement monies in which the FMCRA is implicated.


10, 11 & 12. The attorney and/or client have signed a "letter of protection" in favor of the medical provider; the client has signed an assignment in favor of the medical provider, and the attorney has notice of the assignment; or both the client and attorney have signed an assignment in favor of the medical provider. The protections of ER 1.15 are triggered in each of these situations. The attorney has actual knowledge of a "matured legal or equitable claim" under all three questions, and upon receipt of settlement funds the attorney must notify the third party, investigate the matter under the Burns holding, and disburse the funds to the proper recipient. If the attorney has any "good faith doubt" as to the proper recipient or the client objects to the disbursement to the medical provider, the attorney should hold only the disputed funds in trust pending resolution of the dispute and, if necessary, interplead the disputed funds.


In its discussion, the committee notes the following: The decision in State Farm Mutual Insurance Co. v. St. Joseph's Hospital, 107 Ariz. 498, 489 P.2d 837 (1971), involves facts similar to those presented here. In St. Joseph's, the client in a personal injury case entered into what the court characterized as an agreement to allow the injured party's attorneys to act as a collection agent for the hospital. The agreement signed by the injured party noted that, in consideration for the medical services received for accident-related injuries, the injured party authorized her attorney to deduct and pay over to the hospital a specified sum of money out of any proceeds that became payable by reason of the claim, suit, or settlement. Id. at 499. The court held that the agreement was not a complete or partial assignment, but rather only authorized the attorneys to act as collecting agent for the hospital. Id. at 503. The court went on to note that even though the document did not create an assignment, it did create an interest in the hospital and noted that the hospital's rights were prejudiced where the defendant's insurance company persuaded the injured party to discharge her attorney and settle directly with them.


88-02: A general discussion of the ethical questions presented by written medical liens, the disclosures required, the conflict of interest analysis an attorney must engage in under ER 1.7(b) (conflict of interest ethics rule), and, finally, the steps that an attorney must take if there is a dispute concerning the funds. Specifically, the opinion holds that if the attorney is "satisfied" that either the client or the health care provider is legally entitled to the funds that the attorney is holding, he should disburse them accordingly. If the lawyer has any "good faith doubt" as to the proper recipient, he should hold the disputed monies in trust, pending a resolution of the dispute. Finally, if the attorney's own interests are implicated--for example, if the attorney would like to have the medical provider paid to maintain good relations--the attorney must comply with ER 1.7(b).


88-06: Situation involves a lien claim by workmen's compensation carrier. A lawyer retaining disputed funds in trust may not simply wait until the client and the medical provider resolve the dispute. Rather, after waiting a reasonable period of time, the attorney should interplead the funds. (Note that Comment 4 to ER 1.15 has since been amended that the lawyer shall file to have the Court resolve the dispute instead of necessarily requiring interpleader as opposed to other appropriate legal action.)


97-02: Inquiring attorney believed that the FEHBA healthplan's lien provision was valid and enforceable. Held that attorney required to notify FEHBA healthplan of settlement and disburse directly to the plan any funds to which it was entitled. (In retrospect, the inquiring attorney assumed that the FEHBA healthplan lien provision preempted Arizona anti-subrogation caselaw, but there was then no Arizona or Federal appellate court case holding that Arizona anti-subrogation caselaw was preempted. The U.S. Supreme Court in Empire Healthchoice Assurance, Inc. v. McVeigh (6-15-06, No. 05-200) held that Federal FEHBA law doesn't provide for any FEHBA healthplan liens, and that any such lien claim would be controlled by state law, with the Court affirming the lower Court's dismissal for lack of Federal subject matter jurisdiction.)


99-07: Nonlawyer/public adjuster, licensed under A.R.S. § 20-281, claims an adjuster's "lien" on the injury settlement presently being handled by an attorney. A lawyer may ethically honor an independent adjuster's lien for services performed if the services are those which any nonlawyer could lawfully perform. However, this opinion states that it may not be relied upon as to the validity of the independent adjuster's lien as a matter of substantive law.


03-03: Paralegal, not supervised by attorney, enters into contingent fee agreement, does some work on cases, then assists claimants in interviewing attorneys to handle cases. The paralegal claims a lien against the settlements regardless of the attorney's fees. The attorney believes that the paralegal has committed the unauthorized practice of law (UPL). An Arizona lawyer may not assist the unauthorized practice of law by drafting or seeking to enforce a contract or directing payment of client funds for UPL services, as this violates ER 5.5 (A lawyer shall not assist a non-lawyer in the unauthorized practice of law.)


03-05: Attorney may not ethically enter into any settlement that requires attorney to indemnify or hold harmless Releasee from any lien claims, since under ER 1.8 an attorney can't provide financial assistance to a client by paying or advancing the client's medical expenses before or during litigation, which could encourage prospective clients to seek legal counsel for improper reasons.


(The third part will be in next issue.)


ER 1.15 – HOW TO COMPLY, PART 3


(This is the third part of a three part series on ER 1.15 and how to comply with ER 1.15 at settlement. The first and second parts in the last two issues concern the basic requirements of ER 1.15 and al brief review of Ethics Opinions (advisory).The third part in this issue discusses how to protect yourself at settlement by having your client sign a specific potential lien/reimbursement claim authorization if there is a potential lien claim but in your opinion the protections of ER 1.15 do not apply.)


How to Protect Yourself at Settlement if There is a Potential Lien Claim but in Your Opinion the Protections of ER 1.15 Do Not Apply


As previously discussed, the protections of ER 1.15 are invoked if there is a matured legal or equitable claim, if the attorney has actual knowledge of the third party interest, and if the attorney has good faith doubt that the third party claimant is legally entitled to the funds. Also, the attorney is required to file litigation when there is substantial ground for dispute and if a reasonable time period has expired.


It is the responsibility of the attorney to fully research and document each potential lien and to determine whether ER 1.15 requires protection of each potential lien interest at settlement. And competent attorneys sometimes disagree regarding whether a particular claimed lien interest requires ER 1.15 protection. The attorney may determine that ER 1.15 protection does not apply in certain specific situations. Some examples are as follows: (1) Potential ERISA lien claim when no Accident Questionnaire or notice of lien received and healthplan has been paying accident-related medical expenses; (2) FEHBA lien claim, despite holding of U.S Supreme Court that there is no federal preemption and any state anti-subrogation caselaw is applicable in Empire Healthchoice Assurance, Inc. v. McVeigh (6-15-06, No. 05-2006); and (3) potential Medicare Advantage lien claimwhen no Accident Questionnaire or notice of lien received and healthplan has been paying accident-related medical expenses. If the attorney at settlement determines that ER 1.15 protection doesn't apply to a lien claim of which the attorney has "actual knowledge", perhaps the attorney may still want to notify the lien claimant that the attorney will hold the disputed funds in Trust for so many days to give the alleged lienholder time to file a lawsuit, and thereafter the funds will be distributed fully without regard to what the attorney considers to be an invalid lien claim. On the other hand, if the attorney has no "actual knowledge" and has determined that ER 1.15 protection doesn't apply, then notifying the potential lien claimant, without advance client approval, is dangerous indeed. The attorney's notice to the potential lien claimant will most probably trigger their making a lien claim, regardless of the validity of the lien considering whether any sort of federal preemption applies to invalidate Arizona anti-subrogation caselaw. I have attached a form that the attorney may use, and modify as appropriate, in such cases to obtain client direction of how to proceed at settlement.


Addendum re FEHBA (Federal Employer Healthplan) Lien Claims


Client(s):
Date of Accident:


General Discussion of FEHBA (Federal Employer Healthplan) Lien Claims:


Your health insurance is provided as a benefit of your federal employment. Your health insurer is claiming a lien against your settlement proceeds.


Please feel free to read the attached "Liens Corner" article published in the December 2006 issue of "The Advocate", an Arizona Trial Lawyers publication, written by Attorney Steven J. Bruzonsky for detailed information regarding FEHBA lien claims.


Status of FEHBA Lien Claim:


Check appropriate block below:


[___] To date, your health insurance has paid accident-related health benefits and has not made any lien or subrogation claim against your settlement proceeds.


[___] Your health insurance has paid accident-related health benefits and has made a lien or subrogation claim against your settlement proceeds.


Attorney's ER 1.15 Obligation in This Case:


Arizona legal ethics requires that in some cases the attorney protect the interests of a third party who has a "matured legal interest" or lien against the settlement funds. "Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person." ER 1.15(d). "When - - - a lawyer possesses property in which two or more persons - - - claim interests, the property shall be kept separate by the lawyer until the dispute is resolved." ER 1.15(e). The Comments state: "[Effective December 1, 2004] The Rule also recognizes that third parties may have just claims against specific funds - - - such as a - - - lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim has become a matured legal or equitable claim, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute." The State Bar Committee on the Rules of Professional Conduct states that in their advisory opinion an attorney must have actual knowledge of "matured legal or equitable" claim to all or part of the settlement funds for the special duties of ER 1.15 to be invoked. Ariz. Formal Op. No. 98-06.


In consideration of the above referenced article and the U.S. Supreme Court case cited therein (that there is no federal preemption and therefore state anti-subrogation caselaw applies), I do not have any "good faith doubt" regarding whether there is a "matured legal or equitable" claim by your FEHBA healthplan. I am therefore not required to contact the plan or hold funds in Trust.


Concern that Healthplan Could Withhold Future Benefits Due to Nonpayment of Claimed Lien


Even though the lien is not enforceable thanks to Arizona anti-subrogation caselaw, your healthplan Summary Plan Description (SPD) may contain provisions that the plan may reduce future benefits for failure to reimburse the plan. We have only rarely received such a threat or heard of this occurring, but this is a possibility for you to consider.


Client Directions/Instructions to Attorney:


Check appropriate block below:


[___] Client directs that Attorney immediately distribute settlement funds without holding any funds in Trust Account to cover the potential or claimed lien. Client understands and takes the risk of future adverse consequences including defending a lawsuit by the healthplan and/or nonpayment or termination of future health or other benefits payments by the healthplan.


(If in the future you receive an inquiry or claim from the plan requesting reimbursement, then please forward it to our firm and we will help you by doing our best to persuade the plan to abandon their claim or to negotiate a compromise settlement on your behalf (short of litigation) with your approval. The final decision on whether to agree to any sort of a compromise settlement with the plan will be yours. If any payment is negotiated due to the plan, you would be responsible for paying this out of your own funds.)


[___] Client directs that Attorney hold funds in Trust Account sufficient to cover the claimed lien, and that Attorney contact the healthplan to find out if they claim a lien and negotiate and hopefully settle payment of the claimed lien with client's further direction and approval of offers and settlement of the claimed lien.


I (We) hereby authorize and direct my (our) attorney, the Law Offices of Steven J. Bruzonsky, to handle the healthplan lien claim as set forth above:


Date


Client




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