2016 Legal and Judicial Ethics, Q3

Differentiate “retaining lien” from “charging lien.” (5%)

Quick check

What is the nature of an attorney's retaining lien under Rule 138, Section 37 of the Rules of Court?

What is a mandatory requirement for an attorney's charging lien to take effect against adverse parties?

To what property or asset does an attorney's charging lien attach?

How does a retaining lien differ from a charging lien regarding the necessity of physical possession?

Can an attorney actively enforce a retaining lien by selling the client's documents at public auction?

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1. Retaining Lien Nature
Under Rule 138, Section 37 of the Rules of Court and the Code of Professional Responsibility and Accountability, a retaining lien is a passive, general lien. It entitles an attorney to retain physical possession of all documents, papers, funds, and property belonging to the client that lawfully came into the lawyer's possession in a professional capacity until all lawful fees and disbursements are paid. A retaining lien takes effect from the moment lawful possession is established and does not require court recording or formal notice to adverse parties to be enforceable.

2. Charging Lien Requisites
A charging lien is an active, special lien that attaches to all judgments for the payment of money, and executions issued in pursuance of such judgments, rendered in favor of the client. Unlike a retaining lien, a charging lien does not depend on physical possession of client papers or funds. To be effective against third parties and the judgment debtor, a charging lien must be formally entered upon the records of the trial court with written notice served upon both the client and the adverse party.

3. Legal Lien Distinctions
The fundamental distinctions between retaining and charging liens lie in their scope, prerequisites, and enforcement mechanisms. A retaining lien is passive, applies to general client property in the lawyer's possession, and cannot be actively enforced through execution. Conversely, a charging lien is active, limited strictly to favorable monetary judgments or executions secured by the lawyer's services, and enables the attorney to seek execution against the judgment proceeds directly to satisfy unpaid professional fees.

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The questions reproduced here are the official texts of the Philippine Bar Examinations, published by the Supreme Court. They are reproduced for study purposes.The suggested answers are the author’s own.

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