Phalon v. Technical Communications Corp.

9 Mass. L. Rptr. 657
CourtMassachusetts Superior Court
DecidedFebruary 26, 1999
DocketNo. 9802553
StatusPublished

This text of 9 Mass. L. Rptr. 657 (Phalon v. Technical Communications Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phalon v. Technical Communications Corp., 9 Mass. L. Rptr. 657 (Mass. Ct. App. 1999).

Opinion

Kottmyer, J.

This matter is before the Court on a petition by plaintiffs counsel for an attorney’s lien pursuant to G.L.c. 221, §50 on the settlement proceeds of this action. For the following reasons, the petition is allowed.

BACKGROUND

Petitioner, Hinckley, Allen & Snyder (“HAS”), filed this action on behalf of plaintiffs M. Mahmud Awan (“Awan") and Philip A. Phalon (“Phalon”)3 against defendant Technical Communications Corporation (“TCC”). The litigation was attendant to a proxy contest for control of TCC. Awan and his wholly-owned corporation, Techman International, Inc. (“Techman”), own TCC stock. HAS claims that Awan owes it $423,664.57 in legal fees for services rendered in connection with the litigation.

On November 19, 1998, Awan, after negotiating directly with TCC, entered into a Settlement Agreement (“the Settlement Agreement”). Petitioner was not involved in negotiating the Settlement Agreement. As part of the Settlement Agreement, Awan was elected chairman of TCC’s board of directors, and TCC agreed to reimburse Awan up to $395,000 for documented “expenses of the Litigation [and other related expenses] . . . including, but not limited to, the fees and expenses of Hinckley, Allen & Snyder, Merrill Corporation, and McKenzie & Co., Inc.” The Settlement Agreement entitled TCC to verify the amount of legal fees by reviewing bills, including attorneys’ detailed time records, and by directly questioning HAS about the expenses. The Settlement Agreement required TCC to pay Awan an initial disbursement of $300,000 within three business days of the date of the agreement.4 Pursuant to 113, the effective date of the Settlement Agreement was the later of (a) final approval of the TCC Board of Directors and (b) the dismissal of the litigation with prejudice.

On November 19, 1998, the Board of Directors approved the Settlement Agreement and the Court issued an order of Nisi Dismissal on the action. On November 23, 1998, HAS filed a Notice of Attorney’s Lien,5 a copy of which it had provided to TCC’s counsel on November 20, 1998, via facsimile. According to the docket, on November 23, 1998, the parties also filed and the Court approved a Stipulation of Dismissal with prejudice,6 which stated that the Stipulation of Dismissal was “[p]ursuant to a Settlement Agreement dated November 19, 1998 among the parties.” Also on November 23, 1998, TCC wire transferred $300,000 to Techman.7 In the week following November 23, 1998, counsel for TCC repeatedly told HAS that TCC had not made any payments pursuant to the Settlement Agreement.8

[658]*658Stock in TCC standing in Awan’s name individually and in the name of Techman is held by Prudential Securities (“Prudential”) of Springfield, Massachusetts. The stock is in margin accounts which contain other securities.

According to his own accounting dated January 8, 1999, Awan used the $300,000 as follows: $157,402.36 was paid to Prudential to meet margin calls in accounts held by Awan individually and through Techman: $111,744.15 was paid to reimburse Techman for its prior payments to Prudential to meet margin calls; $18,000 was paid to co-plaintiff Phalon for legal expenses he paid; $10,000 Awan retained for legal expenses he had already paid, and the balance of $2,853.49 is held by Techman.

It is uncontroverted that if Awan had not used the money to cover margin calls, Awan’s margin account would have been at least partly liquidated, which would have depressed the value of TCC shares. These settlement proceeds, therefore, supported TCC’s stock price.9

On December 4, 1998, HAS filed a Petition to Enforce An Attorney’s Lien. On December 16, 1998, TCC’s counsel informed HAS of the $300,000 transfer and its use to cover margin calls. On December 17, 1998, after a hearing on HAS’s Petition to Enforce Attorney’s Lien, this Court issued an order from the bench enjoining Awan from taking any action that would encumber, transfer, alienate or otherwise affect title to shares of common stock of TCC held directly or indirectly by Awan.

DISCUSSION

The Attorney’s Lien Statute, G.L.c. 221, §50 reads in pertinent part:

From the authorized commencement of an action . . . , the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action . . . upon the judgment, decree or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon request of . . . the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien . . .

The Attorney’s Lien Statute gives an attorney the right to assert a “charging lien” to secure compensation for legal services rendered. Cohen v. Lindsey, 38 Mass.App.Ct. 1, 5 (1995), citing Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 244 (1993). Obtaining an attorney’s lien is an equitable matter. See Torphy v. Reder, 357 Mass. 153, 153-54 (1970). The lien gives the unpaid attorney a tool to recover legal fees which is more effective than a traditional action in contract or quantum meruit. Boswell v. Zephyr Lines, Inc., 414 Mass. at 248. The attorney’s lien protects attorneys “against the knavery of their clients, by disabling the clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained.” Id.

Filing a lien for a specific amount does not entitle an attorney to fees in that amount nor does it limit the court in its determination of reasonable fees for services rendered. Cohen v. Lindsey, 38 Mass.App.Ct. at 5. An attorney must establish a substantive contractual or quantum meruit basis to recover fees from the client as a prerequisite to filing a lien. Boswell v. Zephyr Lines, Inc., 414 Mass. at 249-51 (court must determine whether petitioner has substantive right to recover against client before establishing a lien in petitioner’s favor).

The inchoate attorney’s lien takes effect from the authorized commencement of the action and matures upon judgment favorable to the plaintiff. PGR Management Co., Inc. Health Properties v. Credle, 427 Mass. 636, 640 (1998). “[W]hen an attorney files an action an inchoate lien arises in his or her favor. The lien becomes choate when a judgment, decree or other order is entered in the client’s favor . . . [T]he lien • attaches to ‘the proceeds derived therefrom.’ ” In re: Leading Edge Products, Inc., 121 B.R. 128, 131 (D.Mass. 1990).

Awan and/or TCC contend that no lien exists because (1) HAS and Awan had no written agreement for legal fees; (2) attorney’s liens cannot attach to settlement proceeds; and (3) TCC disbursed the $300,000 before the lien arose, so there was nothing to which a lien could attach. Awan and TCC alternatively argue that, even if a lien exists, the petition should be denied on the grounds that the Court lacks jurisdiction over this matter and that the relief sought by HAS is unnecessary to protect HAS’s interests and would irreparably harm TCC stockholders.

I. The Existence of a Lien.

A. HAS’s Right to Recover Legal Fees

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Related

In Re Leading Edge Products, Inc.
121 B.R. 128 (D. Massachusetts, 1990)
Boswell v. Zephyr Lines, Inc.
606 N.E.2d 1336 (Massachusetts Supreme Judicial Court, 1993)
Smith v. Consalvo
638 N.E.2d 501 (Massachusetts Appeals Court, 1994)
Torphy v. Reder
257 N.E.2d 435 (Massachusetts Supreme Judicial Court, 1970)
Miller v. Norton
232 N.E.2d 351 (Massachusetts Supreme Judicial Court, 1967)
PGR Management Co. v. Credle
694 N.E.2d 1273 (Massachusetts Supreme Judicial Court, 1998)
Collins v. Town of Webster
522 N.E.2d 12 (Massachusetts Appeals Court, 1988)
Cohen v. Lindsey
644 N.E.2d 250 (Massachusetts Appeals Court, 1995)
Gagne v. Cedar Development Co., Inc.
32 Mass. App. Dec. 71 (Mass. Dist. Ct., App. Div., 1965)

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Bluebook (online)
9 Mass. L. Rptr. 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phalon-v-technical-communications-corp-masssuperct-1999.