[245 NJSuper Page 320] Post-judgment application is made by the firm of Basile, Testa & Testa (B.T.T.) pursuant to N.J.S.A. 2A:13-5 to impress a common-law special or charging lien for legal services which petitioner asserts is $1557.60 and is still due from the client, Diana M. Panarello (now known as Diana M. Capaccio). B.T.T. also petitions to impose a common-law retaining lien on the client's file or, in the alternative, it asks the court to establish a bond to secure the attorney's claim. The client-respondent
asserts that there is only $312.50 left to be paid and opposes petitioner's application; she does not oppose B.T.T.'s request to withdraw as counsel.
The procedural history leading to this motion is not in dispute. A divorce judgment was entered on August 17, 1985. In May 1990, post-judgment cross motions were filed by plaintiff and defendant for enforcement of litigant's rights. The motions were heard in June and an order issued. As part of this post-judgment order, the court required that a psychological exam be conducted as to visitation issues and that a report be submitted to the court within 60 days thereafter. The psychologist's report was, in fact, issued in August 1990; copies were circulated to counsel.
At the post-judgment motion, each party was represented by new counsel, defendant by Richard Pescatore, then a lawyer-employee with B.T.T. On September 6, 1990, Pescatore left B.T.T. for other employment. B.T.T. asserts the client now chooses to be represented by Pescatore. No claim or action is pending before the court by defendant for the return of her file or for any other relief (although given the difficult visitation issues involved, as with many family actions, more post-judgment applications or review may be required).
The common-law special or charging lien is an active lien. It may be asserted by an attorney for services rendered in a legal proceeding and attaches to the judgment or the final order in the case for which services were rendered. Brauer v. Hotel Associates, Inc., 40 N.J. 415, 420, 192 A.2d 831 (1963). Its scope was enlarged by statute (N.J.S.A. 2A:13-5); but that statute clearly has limits.
After the filing of a complaint or third-party complaint or the service of a pleading containing a counterclaim or cross-claim, the attorney or counsellor at law, who shall appear in the cause for the party instituting the action or maintaining the third-party claim or counterclaim or cross-claim, shall have a
lien for compensation, upon his client's action, cause of action, claim or counterclaim or cross-claim, which shall contain and attach to a verdict, report, decision, award, judgment or final order in his client's favor, and the proceeds thereof in whosesoever hands they may come. The lien shall not be affected by any settlement between the parties before or after judgment or final order, nor by the entry of satisfaction or cancellation of a judgment on the record. The court in which the action or other proceeding is pending upon the petition of the attorney or counsellor at law, may determine and enforce the lien. [ N.J.S.A. 2A:13-5]
N.J.S.A. 2A:13-5 was designed to protect an attorney's fee after commencement of a cause of action, counter-claim, cross-claim, third-party claim or other claim; the lien is to attach to the judgment, final order or decree in the client's favor. Visconti v. M.E.M. Machinery Corporation, 7 N.J. Super. 271, 73 A.2d 74 (App.Div.1950). The attorney's lien protected the fee for services rendered in securing the judgment, final order or verdict on behalf of a client. McCarthy v. McCarthy, 117 N.J. Eq. 22, 174 A. 751 (N.J.Err. & App.1934). N.J.S.A. 2A:13-5 further provides that for a lien to be effective it must be brought during the time the action or ...