concurring. I concur with the majority’s conclusion that Appellee Brazil law firm substantially complied with the provisions of our attomey-lien law, Ark. Code Ann. §§ 16-22-301 to -304 (Repl. 1999 and Supp. 2003). I write separately because the resolution of this case, though legally sound, is unjust. The reality of this case is that Ms. Mack will wind up recovering roughly $40,000 of a $100,000 settlement. While these numbers in and of themselves may not offend notions of justice and fair play, they do so when they are coupled with the fact that $25,000 is being paid to a law firm that did little or no work on behalf of Ms. Mack.
Although I believe that the payment of this fee to the Brazil law firm does not violate the letter of the attorney-lien law, it certainly violates the spirit. I do not believe that the General Assembly ever intended for a discharged attorney to receive a windfall under a contingency-fee contract when he or she did little or nothing to secure the client’s settlement. Rather, I believe that the law was enacted to protect an attorney in cases where the client attempts to settle around the attorney or where another attorney steals the client away from the first attorney. However, I doubt that the legislature wanted to protect an attorney who did nothing on behalf of a client, in a situation such as this, where the client simply chooses to go with another attorney. As it stands, the attorney-lien law is considerably broader than other statutory liens, which ordinarily condition the entitlement to a lien on work performed, rather than the mere existence of a contract.
Having said that, I am aware that the legislature views the attorney-lien law rather liberally, as it has specifically stated that “an attorney should have the right to rely on his contract with his client; and that the Attorney’s Lien Law should be reenacted to protect the contractual rights of attorneys.” Ark. Code Ann. § 16-22-301 (Repl. 1999). Given this statement, I think the majority is correct in upholding Brazil’s claim against the former client’s settlement.
However, I cannot escape the reality of the injustice in this case. What really concerns me is that Ms. Mack was never told that the mere act of signing a contract obligated her to pay the full amount of the fee, even if the law firm performed no work under the contract. All she was informed of was that the contract provided a contingency fee of 25% “with lien retained by attorney and authority to withdraw fee from proceeds of settlement by judgment,” and that:
Client agrees that he will make no setdement except in the presence of the attorney and with his approval, and should the client do so in violation of this agreement, he agrees to pay attorney the sum and share above indicated or the reasonable value of attorney’s services whichever may be greater.
Given the unfortunate facts and circumstances of this case, I urge the General Assembly to take another look at the attorney-lien law and consider amending it to require attorneys licensed to practice in this state to specifically disclose to the client that they may seek a lien for the full amount of the contingency-fee contract even if they do no work on behalf of the client. They should be required to do this in layman’s terms, not legalese. They should specifically tell clients up front that the mere act of signing the contract, even if they discharge the attorney prior to any work being done, renders them responsible for paying the full contract fee in the event they get a settlement or judgment in their favor.
Alternatively, I would urge the legislature to consider requiring at least a modicum of work before the attorney is entitled to a lien on the full amount of the contract fee. As far as I can tell, under the current attorney-lien law, an attorney is not required to show anything other than the existence of a contract and a settlement or compromise by the client to be entitled to a lien. This is in contrast to mechanics or materialmen, who must first supply labor, services, material, etc., before they are entitled to a lien. See Ark. Code Ann. § 18-44-101 (Repl. 2003). The mere existence of a*contract for labor, services, materials, etc., is not sufficient to obtain a lien; they must actually perform under the contract. It is unclear to me why attorneys should be entitled to more protection than other professionals. Surely, the General Assembly could achieve its' goal of protecting attorneys’ rights while simultaneously protecting the rights of their clients.