Putting a Milking Stool Behind a Horse Does Not Make it a Cow: Accountants’ Charging and Retaining Liense in Florida

In family law, lawyers often try to secure payment of their fees by filing notices of charging liens. This is common practice. However, it’s unusual for an accountant to do the same thing. Recently, an accountant involved in a family law case filed a motion claiming they have a right to be paid. This was something new for our law firm. In Florida, we believe that neither a made-up person named Ms. Appleseed nor any accountant, real or made-up, can claim a charging or retaining lien. This is because the law defines these liens as rights for lawyers to get paid for their work, not for accountants or other people. And even though the cases we looked at don’t specifically say that only lawyers can have these liens, we think that’s what they mean. The doctrine of “expressio unius est exclusio alterius” means that when a law specifically mentions certain things, it implies that other things are not included. In Florida, this means that only lawyers can claim charging or retaining liens, not accountants or other nonlawyers. Additionally, just because a lawyer is not paid by a client, it doesn’t automatically give them the right to a portion of any judgment or settlement the client receives later. For example, in the case of Rochlin v. Cunningham, the lawyer was not entitled to a charging lien because she didn’t obtain the benefit for the client. In order for a lawyer to get paid for their services, they need to win the case or settle it in a way that benefits the client. If the lawyer doesn’t help win or settle the case, they might not get paid. This also applies to expert witnesses like accountants. Their work is usually done when they give their testimony at trial, so if the case isn’t resolved, they might not get paid either. The article discusses the inability of accountants to assert retaining and charging liens for securing payment for their work in a lawsuit. It also highlights the ethical duties of accountants towards their clients and explains that Florida law does not allow accountants to assert retaining liens. Any motion filed by an accountant asserting a charging or retaining lien is subject to being stricken and can be reversed on appeal. This information is important for accountants to understand their limitations in claiming liens for their work. A certified public accountant has to give a client their documents back if the client asks for them and gives enough notice. The accountant can also keep copies of the documents for themselves. If there are any other documents related to the accountant’s work for the client that the client doesn’t have, the accountant has to give those to the client too. Some people have suggested creative ways for accountants to make sure they get paid for their work, like getting the client to sign a document saying they’ll pay. But that might not be allowed and could cause problems in legal cases. Another idea is for the lawyer to pay the accountant themselves and include that cost in their own payment from the client. But the decision to do that is up to the lawyer, not the accountant. In our experience, it is rare for an accountant to try to use a charging or retaining lien to get paid for their services in family law cases. If they do try, there are many reasons why it shouldn’t work. First, Florida law doesn’t seem to allow accountants to use these liens. Also, as expert witnesses, accountants don’t actually get the result for the client, so they shouldn’t be able to claim a lien. Plus, in other states, courts have said that only lawyers can use these liens. Florida rules even say that accountants can’t use retaining liens. Accountants can’t practice law, and just saying they can doesn’t make it true. These are references to legal cases in Florida, where the courts had to decide on certain legal matters. They include cases where one party had to prove their side of the story, cases where motions were made to strike certain legal actions, and cases where legal contracts were discussed. In one case, a law firm’s lien on settlement proceeds was found to be superior to another firm’s lien. Luis E. Insignares and Brian J. Kruger are lawyers who specialize in helping people with marital and family legal issues in Ft. Myers and Naples. They are experts in this area of law and have written and talked about it frequently. They work at a law firm together and are dedicated to serving the public and improving the justice system.

Source: https://www.floridabar.org/the-florida-bar-journal/putting-a-milking-stool-behind-a-horse-does-not-make-it-a-cow-accountants-charging-and-retaining-liens-in-florida/