Massachusetts has an attorney’s-lien statute providing that protects a lawyer who “appears for a client” in a court action or “any proceeding before any state or federal department, board or commission.”  The lawyer obtains an automatic “lien for his reasonable fees and expenses”—a lien upon the client’s claim, upon a “judgment, decree or other order” entered in favor of the client, and upon “the proceeds therefrom.”

In a case recently decided by the Massachusetts Supreme Judicial Court (Ropes & Gray LLP v. Jalbert, July 28, 2009), a law firm handled patent-prosecution matters for a corporate client.  When the client went bankrupt, the firm sought to enforce a lien for unpaid fees against the proceeds of sales by the client, both before and after the bankruptcy, of its patents and patent applications.

A representative of the client opposed the firm’s effort, arguing that the lien statute should be read to permit recovery only against the proceeds of a “judgment, decree or other order,” and that issuance of a patent fell within none of these categories.  But the Court read the statute more broadly.  A patent application is a “claim” within the meaning of the statute, in the Court’s view, even though the application process is typically non-adversarial.  And whether or not an issued patent constitutes a “judgment, decree, or other order,” the Court held, a lawyer is entitled to a lien against any proceeds obtained by the client from the sale of a property right in either a pending application or an issued patent.

The Court was unmoved by the client-representative’s suggestion that attorneys would now use the Court’s broad reading to assert liens against such things as “copyrights, taxicab medallions, nursing home licenses, zoning variances, building permits, liquor licenses, environmental permits, and the like.”  The Court suggested that such uses would indeed seem to be consistent with the legislature’s intent, subject to the express limitation in the statute to claims in “state or federal” administrative proceedings.