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Last Post 20 Jun 2013 02:06 PM by  gtrachtenberg
R-11-0024 Ethical Rule 1.15 (“Safeguarding Property”) of Rule 42, Arizona Rules of the Supreme Court
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gtrachtenberg
Posts:

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23 Jul 2011 10:01 AM
    R-11-0024

    PETITION TO AMEND RULE 42, ER 1.15, RULES OF THE SUPREME COURT

    Would provide a mechanism, when a dispute arises between a client and third party over the third party’s interest in property in the lawyer’s possession, for shifting the burden to the third party to take action to protect the alleged property claim

    Petitioners:
    Geoffrey M. Trachtenberg (019338)
    LEVENBAUM & COHEN
    362 North Third Avenue
    Phoenix, Arizona 85003
    (602) 271-0183, Fax: (602) 271-4018
    gmt@lclegal.com
    Co-Petitioner

    David L. Abney, Esq. (009001)
    KNAPP & ROBERTS, P.C.
    8777 North Gainey Center Drive, Suite 181
    Scottsdale, Arizona 85258
    (480) 991-7677; Cell: (480) 734-8652
    abney@krattorneys.com, abneymaturin@aol.com
    Co-Petitioner

    Filed August 2, 2011.

    WITH THE CONCURRENCE OF THE PETITIONERS, THE COURT HAS CONTINUED THIS MATTER TO THE 2013 RULES CYCLE TO ALLOW THE STATE BAR OF ARIZONA TO ESTABLISH A TASK FORCE TO CONSIDER THIS PROBLEM.

    THIS MATTER WILL BE SUBJECT TO THE DEADLINES FOR THE 2013 RULES CYCLE, WITH THE NEW COMMENT PERIOD ENDING ON MAY 21, 2013.

    DENIED August 27, 2013.


    Attachments
    lkoschney
    Posts:

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    24 Oct 2011 11:52 AM
    Darren M. Clausen
    The Moore Law Firm
    Camp Lowell Corporate Center
    4578 East Camp Lowell Drive
    Tucson, AZ 85712
    Ph: (520)327-7113
    Fax: (520)327-3414
    Attachments
    rplattner
    Posts:

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    25 Oct 2011 06:25 PM
    Richard S. Plattner
    Plattner Verderame PC
    P.O. Box 36570
    Phoenix, AZ 85067-6570
    rplattner@plattner-verderame.com


    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It very eloquently and concisely outlines a major dilemma in personal injury lawsuits where the claimant is represented by counsel. I encourage the Committee to adopt the proposed rule change.

    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties. Had my clients not retained an attorney, they would have immediate access to their funds.

    Not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity , it is unfair to force an injury victim's attorney, i.e., me, to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. That improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the unmeritorious lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds.
    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    /s/ Richard S. Plattner
    lkoschney
    Posts:

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    01 Nov 2011 01:33 PM
    James E. Marner
    Schultz&Rollins, LTD
    1980 E. Fort Lowell Road
    Suite 200
    Tucson, AZ 85719
    Ph: (520) 577-7777
    Attachments
    lkoschney
    Posts:

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    01 Nov 2011 01:37 PM
    Anthony J. Palumbo
    Elliot G. Wolfe
    Scott I. Palumbo
    Palumbo Wolfe
    2800 North Central Avenue
    Suite 1400
    Phoenix, AZ 85004
    Ph: (602) 265-5777
    Fax: (602) 265-7222

    Attachments
    lkoschney
    Posts:

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    01 Nov 2011 01:39 PM
    Nicholas A. Moceri
    Nick Moceri, P.C.
    122 North Cortez
    Suite 220
    Prescott, AZ 86301
    Ph: (928) 778-2444
    Fax: (928) 445-6515
    Attachments
    petedonovan17
    Posts:

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    01 Nov 2011 04:45 PM
    Peter T. Donovan
    16700 N. Thompson Peak Parkway
    Scottsdale, AZ 85260
    peter@voightmanlaw.com

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It eloquently and concisely outlines a major dilemma in personal injury lawsuits where the claimant is represented by counsel. I encourage the Committee to adopt the proposed rule change.

    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties. Had my clients not retained an attorney, they would have immediate access to their funds.

    Not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity , it is unfair to force an injury victim's attorney, i.e., me, to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. That improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the unmeritorious lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds.
    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    /s/ Peter T. Donovan
    khammond
    Posts:

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    02 Nov 2011 10:34 AM
    Kent Hammond
    Law Offices of Rudolph & Hammond, LLC
    8686 E. San Alberto Drive, Suite 200
    Scottsdale, AZ 85258
    Phone 480.951.9700
    Fax 480.951.1185
    kent@rudolphhammond.com
    State Bar # 015100
    Attachments
    christopher.curran
    Posts:

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    02 Nov 2011 12:54 PM
    Christopher J. Curran
    3165 S. Alma School Rd. Ste. 29-291
    Chandler, AZ 85248-3764
    480-649-1700
    curran134@cox.net

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney and support it in its entirety. As a practicing attorney in this State I can also from experience echo the sentiments of the attorneys who have already commented in support of the change. I would also add that the rule, [ER 1.15], in its current state has at least the potential for creating needless conflicts of interest between claimants and their attorneys thus warranting change.

    For example, an attorney may be in receipt of both a client's funds and a demand for reimbursement, subrogation, or other demand for money based on the medical lien statutes in Title 33. If the attorney after good faith investigation and research has determined the demand is without merit s/he is left with limited options beyond requesting that the client permit the lawyer to file suit against the demanding party. If the client refuses to allow the suit the attorney would likely be required, not to unilaterally arbitrate the dispute which is specifically prohibited, but institute an interpleader action. If the same attorney is faced with a demand from the client for payment of the funds, the same limited options exist bu now possibly rising to the level of conflict even after the attorney making good faith investigation has determined the demand to be meritless. In this situation the attorney's interest in protecting his or her own "ethical hide" conflicts with the client's interests or instructions.

    The proposed change allows these potential dilemmas to be averted while at the same time providing the lienholder a mechanism to protect its rights. The change also puts these ubiquitious lien issues right where they should be - in the context of law and equity - not attorney ethics.

    Last, I believe it is important to note that these prolific lien issues are often handled in a professional and dignified way by a numer of firms and attorneys within our state and, at least in my experience with these firms, without attempts to use ER 1.15 in its current form as a lever between attorneys and clients. Unfortunately, these local firms and attorneys are not the only individuals engaged in subrogation and lien practice in Arizona. Armies of scoundrels from outside our state, many of whom are not attorneys constrained by out ethical rules and who do not adhere to any level of professionalism, have proliferated and barnacled themselves to personal injury settlements and other claims. These groups, while a disingenous as snakes, are not to be underestimated. They are smart and cunning and know how to read the rules governing lawyers. ER 1.15 in its current form provides them just the leverage they need while at the same time contstraining both the claimant and claimants' attorneys.

    Liens should be about law and equity - not ethics. The proposed modification does nothing to lessen the burden on practioners to investigate claims and protect disputed funds. Indeed, it likely imposes a higher standard of care on the attorney coming into reciept of such funds. The proposed change should be adopted.

    PageMarks
    Posts:

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    03 Nov 2011 05:55 PM
    Page Chancellor Marks
    Management Attorney
    Goldberg & Osborne
    33 N. Stone, Suite 900
    Tucson, AZ 85718
    pchancellor@goldbergandosborne.com
    520-909-0915
    State Bar No. 014372

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. Messrs. Trachtenberg and Abney clearly outline the problems faced by personal injury counsel every day while resolving personal injury cases. I strongly encourage the Committee to adopt the proposed rule change.

    I am a Management Attorney at Goldberg & Osborne. I oversee our offices and assist our attorneys with day to day issues in their files. As a result, I am faced with lien issues daily. I also routinely recieve questions from other attorneys on how to handle lien claims.

    Clearly, all providers want to assert a lien, whether they are entitled to such a lien or not. In my opinion, many lien claims made do not have merit. In our practice, when a lien assertion is made, we have to stop everything to determine whether the provider has a meritous claim or not. When the case settles, we cannot finalize an accounting until the issue is resolved. Many times, we have to hold up paying the client their money until we can prove and get the provider to "agree" that they do not have a meritous lien claim. This resolution can hold up a client's money for months and sometimes years. If I was an unethical lawyer, then I could pay out the money and wait to see if the provider tried to pursue the matter. Furthermore, if the client was unrepresented, they would not be bound by the current 1.15 and could just deposit the money when paid.

    This is clearly an unfair situation. The current situation also costs the injury victim more money. Under the current rule, if we cannot reach an agreement, we must file suit to resolve the issue. Then, the burden to disprove the validity of the lien is upon the injury victom. The burden should clearly be on the lien claimant to prove that it has a right to the injury victim's money.

    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from unfairly taking money from injury victims, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.

    The proposed change to ER 1.15 should be adopted in full.


    lkoschney
    Posts:

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    08 Nov 2011 04:39 PM
    Daniel J. Adelman
    Steven J. German
    Scott B. Seymann
    Mark E. Munson
    Adelman German, PLC
    8245 N. 85th Way
    Scottsdale, AZ 85258
    Ph: (480) 607-9166
    Fax: (480) 607-9031
    Firm@AdelmanGerman.com
    Attachments
    markdb54
    Posts:

    --
    08 Nov 2011 05:09 PM
    Mark D. Bradshaw
    The Bradshaw Hogle Firm PLC
    1013 S. Stapley Dr.
    Mesa AZ 85204-5013
    480-835-5553
    mark@thebradshawfirm.com

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It very eloquently and concisely outlines a major dilemma in personal injury lawsuits where the claimant is represented by counsel. I encourage the Committee to adopt the proposed rule change.

    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties. Had my clients not retained an attorney, they would have immediate access to their funds.

    Not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity , it is unfair to force an injury victim's attorney, i.e., me, to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. That improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the unmeritorious lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds.
    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    Sincerely,
    Mark D. Bradshaw #007170
    jevans
    Posts:

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    08 Nov 2011 10:00 PM
    John Evans
    6619 N. Scottsdale Rd.
    Scottsdale, AZ 85250-4421
    480-922-3676
    jxeavans@msn.com

    I support the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney.

    On a regular basis, our clients are being forced to pay “nuisance amounts” to purported lien holders who claim that they have a lien, but refuse to fully substantiate the lien. This is particularly true in the case of health insurers who claim to have an ERISA lien.

    These “lien holders” threaten ethics complaints against attorneys to extort small amounts to satisfy their “liens.” Often, the amount of the “lien” is too small to justify the expense of an interpleader action. Further, many attorneys are afraid of ethics complaints, and the attorneys will advise their clients to “compromise” the liens, even though in many cases the liens are not valid. In many cases, the purpose of these “compromises” is more to protect the lawyer from an ethics complaint than to benefit the client.

    Because of the current rule, the Bar is an unwitting facilitator of an insidious form of extortion from a large number of our clients of small amounts of money by purported “lien holders. “


    The burden should be on the lien claimant to prove that it has a right to the injury victim's funds, and not on the injury victim to disprove the lien. Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victims, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute concerning the lien.

    The proposed rule change by Mr. Trachtenberg and Mr. Abney strike a fair balance between lien claimants and injury victims. The proposed change to ER 1.15 should be adopted in full.

    /s/John Evans
    eawerkamp
    Posts:

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    09 Nov 2011 02:14 PM
    Eric C. Awerkamp
    1930 S. Alma School Rd. Ste. A-115
    Mesa, AZ 85210-3065
    480-632-9800
    Eric.Awerkamp@azbar.org

    The proposed change to ER 1.15 is needed. I encourage its adoption.

    Unfortunately, in the past several years it has become common for entities to assert questionable and/or unmeritorious liens against a plaintiff's recovery for personal injuries. This requires plaintiff's counsel to hold the plaintiff's funds and spend a significant amount of time and effort to address the asserted liens. If a lien is meritorious, it is promptly paid. If not, the funds must still be retained until signfiicant time and effort is expended to resolve the lien. Plaintiffs in need of these funds are denied access until the unmeritorious lien is extinguished. Under Rule 1.15, I am required to hold these funds.

    I agree with the comments of others that it is unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity. Currently, the burden of resolving the lien is improperly placed on the injured victim to pursue and extinguish the unmeritorious lien. The burden should be on the lien claimant.

    I further agree that giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    Sincerely,
    Eric Awerkamp #012620
    nancily
    Posts:

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    09 Nov 2011 02:43 PM
    Gabriel D. Fernandez
    437 W. Thurber Rd. #16
    Tucson, AZ 85705
    520-293-6255
    Fax: 520-293-3937
    gfernandez@gdflaw.com

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It very eloquently and concisely outlines a major dilemma in personal injury lawsuits where the claimant is represented by counsel. I encourage the Committee to adopt the proposed rule change for the following reasons.
    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties.

    As noted above, unmeritorious lien claimants use our ethical obligations as a stick to beat us into submission. I have been threatened with a bar complaint by more than one lien claimant. The threat of a bar complaint, if I don't pay the lien in full, is a powerful tool to make any attorney submit to the will of a lien claimant. Moreover, as noted above, we must hold our client's money in trust, and expend more of our client's money in order to make the unmeritorious lien claimant go away. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds, not the other way around.

    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.

    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.

    The proposed change to ER 1.15 should be adopted in full.
    Bernard.Rethore
    Posts:

    --
    10 Nov 2011 01:25 PM
    Bernard M. Rethore
    Pfarr & Rethore, PC
    5070 N. 40th Street, Ste. 230
    Phoenix, AZ 85018
    Bernard.Rethore@azbar.org

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It thoughtfully resolves a major challenge experienced in nearly every personal injury claim handled by my office. I encourage the Committee to adopt the proposed rule change.

    As a plaintiff personal injury lawyer over the past twenty few years, I have been required to expend a great deal of time addressing bogus lien claims by third parties collection companies. Although some of these lien claims have merit, the majority do not. These bogus lien claims are tantamount to a “stick-up” of my client as these collection companies attempt to use our ethical duties under Rule 1.15 to the disadvantage of our clients. This is the exact opposite of what is intended by adherence to these rules. My client’s money should not be held hostage because of my ethical duties. Clients benefit from my representation. But, if they had not retained me they would have had immediate access to their funds. Why should anyone be at a disadvantage by simply retaining counsel to assist them?

    Further, not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity, it is also unfair to force an injury victim's attorney to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. This improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the bogus lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds not the other way around.

    Finally, it seems reasonable to give a lien claimant 30 days to file an action to enforce its alleged lien. It will stop unmeritorious lien claimants from extorting money from injury victim's while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien. The proposed rule change set forth by Mr. Trachtenberg and Mr. Abney reasonably seeks to place the burden of proving a lien claim where it belongs on the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel. The proposed change to ER 1.15 should be adopted in full.
    ShaneHarward
    Posts:

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    11 Nov 2011 08:22 AM
    Shane L. Harward
    Law Offices of Shane L. Harward, P.L.C.
    10575 N. 114th Street, Suite 103
    Scottsdale, Arizona 85259
    Phone: 480.874.2918
    Fax: 480.588.5063
    ShaneHarward@cox.net
    State Bar No. 01532

    I encourage the Committee to adopt the proposed rule change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. The reality is that the current ER 1.15 can literally place an attorney in a conflict of interest with his own client over a frivolous lien claim. It is common for alleged lien holders to use collection companies to re-victimize clients who have suffered injuries due to someone else's fault. These collection companies know about the current status of ER 1.15, and attempt to misuse it to their advantage. The client's own attorney is forced to withhold compensation until resolution of these alleged lien claims. The client wants his or her compensation. Compensation to which he or she has suffered and is entitled. In other words, the client's money is oftentimes held hostage by alleged lien claimants because of "ethical" duties. This places unnecessary stress on the attorney-client relationship. These collection companies, and the alleged lienholders, making the frivolous lien claim should have the burden to prove that they are entitled to the injury victim's fund. It is unfair to place this burden on the client and the client's attorney. Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop frivolous lien claimants from extorting money from injury victim's and potentially do away with this cottage lien collection industry, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a legitimate material dispute to the propriety of the lien. As stated by several of my colleagues, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant.

    The proposed change to ER 1.15 should be adopted in full.
    ehopkins
    Posts:

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    15 Nov 2011 12:39 PM
    Edward C. Hopkins Jr.
    Fisher Hopkins Nandan Pangalos PLLC
    7700 E. Arapahoe Road, Suite 350
    Centennial, CO 80112
    (303) 779-5300 tel
    (303) 779-5305 fax
    ehopkins@yourcoloradolawyers.com

    I read the proposed change to ER 1.15 that Mr. Trachtenberg and Mr. Abney co-authored. It should be adopted in full.

    Giving lien claimants 30 days to file actions to enforce their alleged liens will eliminate the unjust consequences of empowering lien claimants to hold attorneys' clients' funds hostage before they prove they are entitled to those funds. At the same time, it preserves lien claimants' rights to timely pursue their alleged liens. The proposed change to ER 1.15 seeks to equitably place the burden of proving and pursuing lien claims on lien claimants, where it belongs.

    Sincerely,

    Edward C. Hopkins Jr. #028825
    mfmagee
    Posts:

    --
    15 Nov 2011 01:11 PM
    Michael F. Magee
    The Magee Law Firm, PLC
    7411 E. Sixth Ave, Suite 106
    Scottsdale, AZ 85251
    mike@themageelawfirm.com

    I have read the proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney. It very eloquently and concisely outlines a major dilemma in personal injury lawsuits where the claimant is represented by counsel. I encourage the Committee to adopt the proposed rule change.
    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties. Had my clients not retained an attorney, they would have immediate access to their funds.
    Not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity , it is unfair to force an injury victim's attorney, i.e., me, to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. That improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the unmeritorious lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds.
    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.
    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    lincolncombs
    Posts:

    --
    15 Nov 2011 01:55 PM
    Lincoln Combs
    Gallagher & Kennedy, P.A.
    2575 E. Camelback Road
    Phoenix, Arizona 85016
    602-530-8022
    lincoln.combs@gknet.com
    State Bar No. 025080

    The proposed change to ER 1.15 authored by Mr. Trachtenberg and Mr. Abney should be adopted in full, and I encourage the Committee to adopt the proposed rule change.
    As a plaintiff personal injury lawyer, over the past few years I have been required to expend more and more of my time and client funds addressing lien assertions by third parties. Some of those lien assertions have merit. Unfortunately, many times they do not. In those situations where there is a lack of merit, because of the fear that the unmeritorious lien claimant may accuse me of not properly fulfilling my ethical duties under Rule 1.15, I am forced to withhold my client's funds pending some sort of resolution with the unmeritorious lien claimant. In other words, the client's money is oftentimes held hostage because of my ethical duties. Had my clients not retained an attorney, they would have immediate access to their funds.
    Not only is it unfair to allow unmeritorious lien claimants to take advantage of my ethical duties with impunity , it is unfair to force an injury victim's attorney, i.e., me, to file a lawsuit against the unmeritorious lien claimant to have the lien declared unenforceable or illegal. That improperly places the burden to disprove the validity of the lien upon the injury victim, instead of the party claiming the unmeritorious lien. The burden should be on the lien claimant to prove that it has a right to the injury victim's funds.
    Giving a lien claimant 30 days to file an action to enforce its alleged lien will stop unmeritorious lien claimants from extorting money from injury victim's, while preserving the lien claimant's right to pursue a lien in those instances where the lien claimant believes there is a material dispute to the propriety of the lien.
    In conclusion, the proposed rule change set forth by Mr. Trachtenberg and Mr. Abney seeks to equitably place the burden of proving a lien claim upon the lien claimant. No longer will it be permissible for unmeritorious lien claimants to hold an injury victim's funds hostage because the injury victim retained counsel.
    The proposed change to ER 1.15 should be adopted in full.

    Lincoln Combs
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