McDonald Carano Wilson LLP v. Bourassa Law Group, LLC ( 2015 )

 steps to perfect a charging lien for more than $100,000 in attorney fees
plus costs. Thereafter, Cooper retained Bourassa Law Group (Bourassa),
which obtained a $55,000 settlement for Cooper. Bourassa filed an
interpleader action seeking proper distribution of the settlement funds
among several claimants, including McDonald Carano. The district court
concluded that McDonald Carano could not enforce its charging lien
because it withdrew before settlement occurred.
McDonald Carano timely appealed, arguing the district court
erred in holding that McDonald Carano could not enforce its charging lien.
We reverse the district court's order denying McDonald Carano's request
for disbursement and remand.
McDonald Carano's withdrawal does not prevent it from enforcing its
charging lien
Charging liens are governed by NRS 18.015, which provides
that lab attorney at law shall have a lien. . . [u]pon any claim, demand
or cause of action .. . which has been placed in the attorney's hands by a
client for suit or collection," and that lien "attaches to any verdict,
judgment or decree entered and to any money or property which is
recovered on account of the suit or other action." NRS 18.015(1)(a), (4)(a).
This court has not yet determined whether an attorney's withdrawal
prevents him from enforcing a charging lien under NRS 18.015. We
review questions of statutory interpretation de novo. D.R. Horton, Inc. v.
Eighth Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d 731, 737 (2007).
"When a statute's language is clear and unambiguous, it must be given its
plain meaning." Id. "A statute is ambiguous if it is capable of being
understood in two or more senses by reasonably well-informed persons."
Id.The district court held McDonald Carano could not enforce its
"charging lien because McDonald Carano withdrew from the Cooper
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matter prior to any settlement being obtained and did not obtain a
settlement for the client." The district court based its decision on this
court's statement that "[a] charging lien is a lien on the judgment or
settlement that the attorney has obtained for the client." Argentena
Consol. Mining Co. v. Jolley Urga Wirth Woodbury & Standish, 125 Nev.
527, 534, 216 P.3d 779, 783-84 (2009) (emphasis added).
The district court's reliance on Argentena is misplaced.
Argentena said nothing about whether withdrawn attorneys can enforce
charging liens. It held that charging liens only apply when a client is
entitled to affirmative monetary recovery. Id. at 534, 216 P.3d at 784.
The language from Argentena that the district court relied on—la]
charging lien is a lien on the judgment or settlement that the attorney has
obtained for the client"—merely provided a general explanation of what a
charging lien is. 1 Id. We did not consider whether withdrawing prior to
1 The full paragraph reads as follows:
A charging lien is a lien on the judgment or
settlement that the attorney has obtained for the
client. Here, it is undisputed that Argentena did
not file an affirmative claim against the plaintiff
in the underlying action. And although Jolley
Urga obtained a dismissal of all claims against
Argentena, the settlement did not result in any
recovery for Argentena. In the absence of
affirmative relief that Jolley Urga obtained for
Argentena, we conclude that Jolley Urga did not
have an enforceable charging lien over which the
district court had incidental jurisdiction to
adjudicate in the underlying case. Thus, we turn
to whether the district court had jurisdiction to
adjudicate Jolley Urga's retaining lien.
Id. at 534, 216 P.3d at 783-84 (internal citations omitted).
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settlement precluded the enforcement of a charging lien; therefore,
nothing in Argentena compels the conclusion that attorneys cannot assert
a charging lien if they withdraw before judgment or settlement.
NRS 18.015's language unambiguously allows any counsel
that worked on a claim to enforce a charging lien against any affirmative
recovery. According to NRS 18.015(1)(a), "[a]n attorney at law shall have
a lien" when a claim "has been placed in the attorney's hands by a client
for suit or collection." In other words, an attorney "shall have a lien" if
employed by a client; there is no requirement that the attorney serve the
client at the moment of recovery. Instead, there is a generalized
requirement of recovery so that the lien can actually attach to something
of value. NRS 18.015(4)(a) (providing that charging liens "attach[ ] to any
verdict, judgment or decree entered and to any money or property which is
recovered on account of the suit or other action"). Contrary to Bourassa's
arguments, NRS 18.015 does not distinguish between pre- and post-
recovery attorneys. It says that any attorney who worked on the case
"shall have a lien" on the claim, and that the lien attaches to any recovery.
Therefore, the district court erred in holding that McDonald Carano's
withdrawal precluded it from enforcing a charging lien because NRS
18.015's plain language makes no distinction between attorneys who
worked on a case before recovery and those that were working on a case at
the moment of recovery.
On remand, the district court must make additional findings
Because the district court based its decision solely on
McDonald Carano's withdrawal, it did not address certain necessary
issues regarding disbursement of the settlement funds. Specifically, "the
court must make certain findings and conclusions before distribution,"
including whether (1) NRS 18.015 is available to an attorney, (2) there is
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some judgment or settlement, (3) the lien is enforceable, (4) the lien was
properly perfected under NRS 18.015(2), (5) the lien is subject to any
offsets, and (6) extraordinary circumstances might affect the amount of
the lien. Michel v. Eighth Judicial Dist. Court, 117 Nev. 145, 151-52, 17
P.3d 1003, 1007-08 (2001). Further, the district court must determine the
actual amount of the lien pursuant to the retainer agreement or, if there is
no agreement, set a reasonable fee. Id. at 152, 17 P.3d at 1008. Finally,
the district court must ensure that McDonald Carano's and Bourassa's fee
agreements are not unreasonable. See Marquis & Aurbach v. Eighth
Judicial Dist. Court, 122 Nev. 1147, 1160-61, 146 P.3d 1130, 1138-39
(2006); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349-50, 455 P.2d
31, 33-34 (1969); RPC 1.5.
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
Parraguirre
J.
, J.
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cc: Hon. Ronald J. Israel, District Judge
John Walter Boyer, Settlement Judge
McDonald Carano Wilson LLP/Las Vegas
California Back Specialists Medical Group, Inc.
California Minimally Invasive Surgery Center
Bourassa Law Group, LLC
Conejo Neurological Medical Group, Inc.
Boyack Orme & Taylor
Medical Imaging Medical Group
Abrams Probate & Planning Group
Thousand Oaks Spine Medical Group, Inc.
John C. Chiu, M.D., Newbury Park, CA
Eighth District Court Clerk
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