Rhoads v. Sommer

RAKER, J. Respondents Fred S. Sommer, an attorney, and Shulman, Rogers, Gandal, Pordy & Ecker, P.A., his law firm, (collectively referred to in the singular as “Sommer”) filed a complaint to enforce an attorney’s lien against Lori D. Rhoads, petitioner. We granted certiorari to consider three questions. Rhoads v. Sommer, 396 Md. 524 , 914 A.2d 768 (2007). First, we consider whether respondents’ right to a statutory attorney’s hen, as set forth in Md.Code (1999, 2006 Cum.Supp.), § 10-501 of the Business Occupations & Professions Article, was waived by the language of the parties’ retainer agreement. 1 We shall hold that the retainer agreement did not waive respondents’ right to a statutory attorney’s lien under § 10-501.

Second, we consider whether a § 10-501 attorney’s lien survives a bankruptcy discharge even if no notice of the intent to claim a lien was given prior to the bankruptcy. We shall hold that the § 10-501 lien survives the bankruptcy discharge and that Sommer properly gave notice of the lien under Maryland Rule 2-652. Finally, we consider whether petitioner’s constitutional due process rights were violated. ¹³⁷ We shall hold that petitioner did not suffer any due process violations. I. Rhoads, a financial analyst, began work for Standard Federal Savings Bank (SFSB) in September of 1987. 2 Rhoads was terminated from her position as Director of Financial Analysis at Standard Federal Savings Association (SFSA), the successor to SFSB, on September 15, 1993.

In December 1993, Rhoads initiated a charge of discrimination with the Federal Equal Employment Opportunity Commission (EEOC) and the Maryland Commission on Human Rights, asserting that she was wrongfully discharged. In January 1994, Rhoads retained Sommer 3 to file an employment discrimination lawsuit against her former employers, SFSB and its successor SFSA. 4 Sommer filed a federal suit on behalf of Rhoads alleging violations of the Family and Medical Leave Act, 29 U.S.C. §§ 2601-2654 (2000) (FMLA), the employment provisions of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12117 , 12203 (2000) (ADA), the common-law duty to provide a safe workplace, and the county human rights law arising from Rhoads’ exposure to secondhand smoke in her workplace and her employer’s allegedly retaliatory termination after she threatened to file an ADA discrimination claim. See Rhoads v. F.D.I.C., 257 F.3d 373 , 377-79 (4th Cir.2001). ¹³⁸ In February 1997, the United States District Court for the District of Maryland granted summary judgment to the former employer on nine of Rhoads’ ten claims including Rhoads’ ADA claims—for failure to make reasonable accommodations, discriminatory termination, and retaliation—as well as the state law claims. See Rhoads v. FDIC, 956 F.Supp. 1239 (D.Md.1997).

A jury subsequently found in the employer’s favor on the remaining FMLA claim. See Rhoads v. F.D.I.C., 257 F.3d at 376. Sommer filed various post-trial motions on Rhoads’ behalf, including a motion for judgment as a matter of law or alternatively for a new trial. 5 On March 27, 1998, Rhoads filed a voluntary petition for Chapter 7 bankruptcy. In her bankruptcy schedules, Rhoads listed Fred S. Sommer, Esq. as a creditor holding an unsecured nonpriority claim in the amount of $190,000 for legal services. 6 Sommer was individually identified as a creditor and was served with Rhoads’ petition, but he did not file any response or other claim in the bankruptcy proceedings.

Rhoads also disclosed on her petition’s statement of financial affairs that she was party to a “[cjivil claim for damages,” which had resulted in a “judgment for defendant 3/4/96, time for appeal has not expired.” Any action on the civil case, however, was automatically stayed when Rhoads filed the Chapter 7 bankruptcy petition. 7 See 11 U.S.C. § 362 (2000). ¹³⁹ After reviewing Rhoads’ petition, the bankruptcy trustee concluded there was “no property available for distribution from the estate.” Based on this conclusion, the trustee filed a report of no distribution on May 8, 1998, releasing to Rhoads any interest she might have in the stayed litigation. On July 2, 1998, the bankruptcy court granted Rhoads a discharge under 11 U.S.C. § 727 (2000). From April to August 1998, Rhoads and Sommer exchanged several letters concerning whether Sommer would continue to represent Rhoads. The correspondence began with Sommer asking whether Rhoads wanted him to file a reply brief or take some other action on her behalf regarding her motion for judgment as a matter of law and her motion for new trial, originally filed in March 1998 and now active again because the bankruptcy trustee relinquished her claim.

Sommer stated that he was “willing to file a reply brief on the motion for new trial (and if the motion is granted, try the case),” but that he was “not willing to incorporate into the reply brief [Rhoads’] suggested revisions.” In response, Rhoads asserted that the reply brief should “include all relevant arguments available to us” but that “it is preferable to have some response rather than no response at all.” Thus, Sommer filed the reply brief on May 27, 1998. On August 12, 1998, the motions for judgment as a matter of law and motion for a new trial were denied. See Rhoads v. F.D.I.C., 257 F.3d at 376. Sommer discussed with Rhoads an appeal of the district court judgment.

On August 14, 1998, Sommer wrote Rhoads that he was “willing to bring an appeal challenging the special verdict form used” to try the FMLA claim, and, pending further research, “might also be willing to challenge the district court’s summary judgment ruling” dismissing the ADA claim and limiting the period of back pay. Sommer stated that he was “not willing to raise any other issues or arguments on appeal.” In addition, Sommer proposed that Rhoads “would remain responsible for all unpaid fees and costs incurred to date and any future fees and costs, pursuant to the terms of our original fee agreement.” Rhoads responded that “[b]efore being able to seriously consider your letter of ¹⁴⁰ today, I must know whether you intend to sent [sic] the record straight on the malicious verbal and written attacks that have been perpetrated against me by the Defense.” Rhoads also questioned, inter alia, whether a new retainer agreement would revive the debt that she believed had been discharged in bankruptcy. In response, Sommer stated that although he did “not intend to seek recovery from you of the unpaid attorney’s fees and costs incurred prior to bankruptcy filing,” he still had “a statutory lien for those fees and costs against any recovery you obtain in this case,” and that this lien was not discharged in bankruptcy. Disagreements between Sommer and Rhoads continued.

As a result, Sommer officially withdrew as Rhoads’ attorney, effective August 29, 1998. On September 28, 1998, Sommer sent notice of his attorney’s lien to Rhoads and to counsel for the FDIC. Sommer stated that pursuant to § 10-501 and Md. Rule of Civil Procedure 2-652, he “has a lien on any judgment, award, or settlement” Rhoads may receive in connection with the instant litigation, Rhoads v. FDIC, Civil Action No. B-94-1548 (D.Md. 1998). Sommer asserted a right to “no less than (i) $159,729.74 or (ii) the amount of any attorney’s fees awarded for legal services provided by Sommer prior to August 28, 1998.” On September 9, 1998, Rhoads filed notice that she was appealing the judgment of the district court.

Rhoads proceeded with the appeal largely pro se. On July 12, 2001, the United States Court of Appeals for the Fourth Circuit reversed the District Court on one issue, holding that Rhoads had presented evidence sufficient to preclude a grant of summary judgment to the employer on Rhoads’ retaliation claim under the ADA. 8 See Rhoads, 257 F.3d at 394. The ¹⁴¹ Fourth Circuit remanded the case for a new trial on that cause of action. 9 Id. Rhoads continued to represent herself during the second trial on her remaining retaliation claim under the ADA.

In December 2002, more than four years after Sommer withdrew as Rhoads’ attorney, a federal jury found that Rhoads proved “ ‘by a preponderance of the evidence that the reasons given by the FDIC for her termination were false and that retaliation for her protected conduct under the ADA was the true reason for that termination.’ ” Rhoads v. FDIC., 286 F.Supp.2d 532, 537 (D.Md.2003) (quoting the Verdict Form). The jury awarded Rhoads damages of $120,006. Id. As a prevailing party in an ADA action, Rhoads then moved for an award of attorney’s fees and costs.

See 42 U.S.C. § 12205 (2000); see also Mammano v. Pittston Co., 792 F.2d 1242, 1244 (4th Cir.1986). Rhoads requested a total award of $175,744.99, which included fees and expenses for legal work performed by her first attorney, Sommer, and herself. In her memorandum in support of her claim for attorney’s fees, Rhoads cited Sommer’s “statutory lien in the amount of $159,729.74” and stated that she had already paid Sommer a total of $20,398.52. Rhoads asserted that during the five years of Sommer’s representation he billed “approximately 270 hours per year” and that “the number of hours Sommer expended on this case was, in all regards, reasonable.” In June 2003, Sommer moved to intervene for the limited purpose of being heard on the fee issue.

Sommer asserted two interests in the lawsuit: (1) an interest in any attorney’s fee awarded to Rhoads for his work; and (2) an interest in any final judgment entered by the court, by virtue of the attor ¹⁴² ney’s lien. See Rhoads, 286 F.Supp.2d at 544 . The FDIC responded by opposing Sommer’s motion to intervene. The federal district court denied Rhoads’ claim for fees and costs and denied Sommer’s motion to intervene.

Rhoads v. FDIC, 286 F.Supp.2d at 543, 545 . The district court agreed that Rhoads was a prevailing party, but considered several factors in determining whether an award of attorney’s fees should be granted to Rhoads for her former counsel’s work in the case. Id. at 543 . In its ruling, the federal district court first stated that any entitlement to attorney’s fees belonged to Rhoads alone, rather than her attorney or former attorney.

Id. at 542 . The court then considered whether Sommer performed services that contributed to Rhoads’ success in the lawsuit. Noting that Rhoads repeatedly asserted that her former counsel performed no services that contributed to the ultimate success of the litigation, the court concluded that Rhoads was not entitled to receive attorney’s fees for any work performed by her former counsel. 10 Id. at 542-43 . The court also concluded that since “the purpose of awarding attorney’s fees is to enable plaintiffs to retain ‘competent counsel,’ ” it would be improper to allow fees when Rhoads repeatedly characterized her former counsel as incompetent. 11 Id. at 543 .

Even assuming that the district court were to allow fees, it pointed out that the fees allowed would be very small because “the prevailing party is not entitled to fees incurred in pursuing unsuccessful claims” and “[o]f the approximately ten original claims, only one was ultimately successful.” Id. at 541 n. 7. Thus, due to Sommer’s withdrawal “before Rhoads pre ¹⁴³ vailed at the Fourth Circuit and second trial,” Sommer “would need to establish that [his] efforts, and not those of Rhoads or amicus, produced the final judgment in favor of Rhoads.” Id. Finally, the court analyzed whether the award of fees would be unjust. The court noted that, shortly after the decision by the U.S. Court of Appeals for the Fourth Circuit, Rhoads filed a malpractice suit against Sommer in state court, praying for recovery of fees paid to Sommer and dismissal of his lien.

Id. at 543 . The federal district court acknowledged that if Rhoads’ malpractice suit against former counsel is successful, she could potentially recoup all of the attorney’s fees she paid to Sommer. Id. Thus, Rhoads could receive a windfall if she were to be awarded fees in both forums.

Id. Furthermore, the court noted that Rhoads herself proffered that she owes nothing to Sommer as a result of her bankruptcy discharge. The court did not opine on the effect of the bankruptcy court’s discharge on Sommer’s attorney’s lien, but acknowledge that it “would be manifestly unjust to award her attorney’s fees to cover expenses that already have been discharged.” Id. For all of those reasons, the federal district court denied Rhoads’ motion for attorney fees and, given that, determined that Sommer’s interest in the fees was moot.

Id. at 543, 544 . Sommer also asserted, in his motion to intervene, an interest in any final judgment entered by virtue of an attorney’s lien. The court noted that Rhoads and her former counsel did not state that their fee arrangement addressed entitlement to a statutory attorney’s lien. The court noted that the interest to the attorney’s lien was in dispute, but concluded that it did not have jurisdiction over an action to execute a statutory attorney’s lien.

Id. at 544 . Moreover, the court reasoned that its denial of fees would not impair or impede any interest Sommer may have by way of the attorney’s lien. Id. Thus, the court denied Sommer’s motion to intervene and made no holding regarding the statutory attorney’s lien.

Rhoads’ second appeal to the Fourth Circuit was unsuccessful and the district court’s judgment became final. See Rhoads v. FDIC, ¹⁴⁴ 286 F.Supp.2d at 545 (D.Md.2003), aff'd, 94 Fed.Appx. 187 (4th Cir.2000). On December 20, 2004, Sommer filed a complaint in the Circuit Court for Montgomery County, seeking a declaration “that the attorney’s lien is valid and enforceable against the” $120,006 judgment Rhoads obtained in the second federal district court trial, and asking the court to “enforce the attorney’s lien against” that judgment. Sommer claimed a lien of $159,729.74, the same amount Sommer claimed when he gave notice to Rhoads and the FDIC after he withdrew as counsel in 1998.

Along with the complaint, Sommer filed a motion for a temporary restraining order and preliminary injunction to ensure payment of his fees from any FDIC payment made to satisfy the judgment in favor of Rhoads. In response, the Circuit Court ordered the FDIC to pay $40,000 of the $120,000 judgment into the court registry. Rhoads moved to dismiss Sommer’s lawsuit. While that motion was pending, Sommer moved for summary judgment.

After briefing and oral argument, the Circuit Court for Montgomery County granted judgment in favor of Rhoads, treating her motion to dismiss as one for summary judgment. The Circuit Court noted that “generally an attorney’s lien is perfected upon the commencement of the representation. Therefore, such liens typically would not be extinguished in bankruptcy.” The court concluded, however, that a plain reading of the retainer agreement led it to conclude that Sommer had waived his right to a statutory lien in the event that he did not obtain a judgment in favor of his client. The court held that Sommer agreed to forego his statutory lien rights by agreeing that, if his representation did not yield a judgment or settlement in Rhoads’ favor, she would not be obligated to pay more than $500 per month toward the outstanding fee balance.

The court noted that “in general [Sommer’s] position is the correct one,” and that “it is only because of the wording of this particular agreement that the court has concluded that [Sommer] waived his right to assert the lien and therefore, his claim was extinguished.” Sommer filed a timely appeal to the Court of Special Appeals. ¹⁴⁵ On October 31, 2006, the Court of Special Appeals reversed. Sommer v. Rhoads, 171 Md.App. 392 , 910 A.2d 514 (2006). The Court of Special Appeals reviewed the parties’ retainer agreement, Maryland attorney lien law, and bankruptcy law in its analysis. The court concluded that nothing in the retainer agreement could reasonably be interpreted to mean that Sommer waived his right to assert a lien after a loss in the first trial and his later withdrawal because no language in the agreement says or implies such a waiver.

Id. at 407-08 , 910 A.2d at 522-23 . The court held also that the lien took effect upon the commencement of Sommer’s services, was not lost by Sommer’s failure to serve written notice under Md. Rule 2-652 before the bankruptcy petition, was not dependent on the viability of an in personam claim, and was not extinguished in the bankruptcy despite the fact that Sommer did not file proof of claim in bankruptcy. Id. at 408-17 , 910 A.2d at 523-29 . Furthermore, the court concluded that Rhoads’ procedural due process rights were not violated.

Id. at 419-29 , 910 A.2d at 530-36 . Rhoads filed a petition for writ of certiorari, which we granted. Rhoads v. Sommer, 396 Md. 524 , 914 A.2d 768 (2007).

II

Rhoads and Sommer entered into a retainer agreement on January 31, 1994. The agreement provides for both a “guaranteed fee” and, in the event that Rhoads obtains a judgment or settlement in her favor, a “contingent premium.” The agreement states, in pertinent part, as follows: “Guaranteed Fee. Client will pay Attorney $100 per hour as a Guaranteed Fee for all hours worked. This Guaranteed Fee is payable regardless of whether a judgment or settlement is obtained in Client’s favor.

Attorney will obtain authorization from Client in any calendar month that he anticipates working in excess of 10 hours. Attorney has advised Client that, absent settlement, he anticipates it is very likely that he will be required to work in excess of 10 hours in many months. ¹⁴⁶ “Contingent Premium. In the event that Client obtains a judgment or settlement in her favor, Client will pay Attorney a Contingent Premium, in addition to the Guaranteed Fee, of $100 per hour for all hours worked. The Contingent Premium shall not result in total fees (i.e., the Guaranteed Fee and the Contingent Premium) exceeding 30 percent of the Total Recovery. “The Total Recovery is the total amount recovered by settlement or judgment, including any amount recovered as interest, attorney’s fees and punitive damages with respect to any claims brought or asserted on behalf of Client, whether brought or asserted separately or together, and whether brought or asserted in a lawsuit, a charge with an administrative agency (including Client’s pending EEOC and Department of Labor charges) or informally.” With respect to the payment of fees and costs, the Agreement provides: “Monthly Payments.

Client will be billed monthly for all fees and costs incurred. Except for certain additional fee payments set forth below, Client will be required to pay within 30 days of the monthly bill: “—Either the balance of the fees outstanding or $500 toward the outstanding balance, whichever is less, plus “—all costs advanced by Attorney “In addition to the $500 monthly installment toward fees, Client will also be required to pay on a monthly basis for all hours worked in excess of 25 in a calendar month, provided that Attorney has obtained authorization for Client from such hours.... “Payment Upon Receipt Of Judgment Or Settlement Proceeds Or Conclusion Of Case “Attorney will be entitled to payment of all fees and costs owed upon Client’s receipt of the proceeds of a judgment or settlement upon the conclusion of any action brought by Attorney upon Client’s behalf. If there is no judgment or settlement in favor of Client, Client will pay the outstanding balance to Attorney in $500 monthly installments. ¹⁴⁷ “Termination. Attorney may withdraw his representation of Client if Client fails to pay any amount owed when due.

In such event, Client will remain responsible for all outstanding charges, and such charges will become due and payable immediately, or payable on a mutually acceptable payment schedule to include interest at the prime rate. “Attorney may withdraw his representation of Client for any other reason, subject to any required court approval, and upon reasonable notice. In such event, Client will remain responsible for all outstanding charges in accordance with the monthly payment schedule set forth above. “Client may terminate Attorney’s representation at any time for any reason. In the event that Client does so, Client will remain responsible for all outstanding charges, and such charges will become due and payable immediately, or payable on a mutually acceptable payment schedule to include interest at the prime rate.” III. Before this court, petitioner argues that the Court of Special Appeals erred by reversing the trial court’s holding that the plain language of the retainer agreement precludes preservation of an attorney’s lien.

Rhoads asserts that the language of the agreement limits Sommer’s right to assert a lien under § 10-501 in the event of an unsuccessful conclusion to the initial trial and, therefore, Sommer was limited to collecting the outstanding attorney’s fees in $500 monthly installments from Rhoads in personam. Rhoads argues also that the Court of Special Appeals erred in holding that Sommer could assert an attorney’s lien after Rhoads’ bankruptcy discharge and without pre-bankruptcy notice. Finally, Rhoads contends that application of the attorney’s lien statute is a violation of her Constitutional due process rights. Sommer responds that the parties’ retainer agreement is consistent with the attorney’s lien statute, and that there was no waiver of his statutory lien.

Sommer asserts also that ¹⁴⁸ Rhoads’ discharge of her in personam debts does not affect Sommer’s attorney’s lien, which is an in rem claim created at the time the action began. Furthermore, Sommer asserts that notice of the lien is not required before a bankruptcy case is filed because the lien was already in existence and Md. Rule 2-652(b) governs only the enforcement or execution of the lien. Finally, Sommer contends that the attorney lien statute is constitutional and that its application in this case does not violate Rhoads’ due process rights.

IV

Whether summary judgment was entered properly is a question of law, which we review de novo. See River Walk v. Twigg, 396 Md. 527, 541 , 914 A.2d 770, 778 (2007). Maryland Rule 2-501 governs the entry of summary judgment and provides, in pertinent part, as follows: “The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f). We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.

Harford County v. Saks, 399 Md. 73, 82 , 923 A.2d 1, 6 , (2007). V. We first consider whether the language of the parties’ retainer agreement waived Sommer’s right to a statutory attorney’s lien as set forth in Maryland Business Occupations & Professions Article § 10-501. 12 Section 10-501 provides, in pertinent part: ¹⁴⁹ “(a) In general.—Subject to subsection (b) of this section, an attorney at law has a lien on: “(1) a cause of action or proceeding of a client of the attorney at law from the time the cause of action arises or the proceeding begins; and “(2) a settlement, judgment, or award that a client receives as a result of legal services that the attorney at law performs. “(b) Limited fee agreement.—A lien under this section attaches only if, and to the extent that, under a specific agreement between an attorney at law and a client, the client owes the attorney at law a fee or other compensation for legal services that produced the settlement, judgment, or award.... “(d) Execution.—An attorney at law may retain property subject to a lien under this section and bring an action for execution under the lien only in accordance with rules that the Court of Appeals adopts.” To assert a lien under § 10-501, an attorney must follow the procedures set forth in Md. Rule 2-652(b). The rule states, in pertinent part, as follows: “(b) Statutory lien. An attorney who has a lien under Code, Business Occupations and Professions Article, § 10-501, may assert the lien by serving a written notice by certified mail or personal delivery upon the client and upon each person against whom the lien is to be enforced.

The notice shall claim the lien, state the attorney’s interest in the action, proceeding, settlement, judgment, or award, and ¹⁵⁰ inform the client or other person to hold any money payable or property passing to the client relating to the action, proceeding, settlement, judgment, or award. “(c) Adjudication of rights and lien disputes. (1) When a circuit court action has been filed. If a lien asserted pursuant to this Rule relates to an action that has been filed in a circuit court of this State, on motion filed by the attorney, the attorney’s client in the action, or any person who has received a notice pursuant to section (b) of this Rule, the court shall adjudicate the rights of the parties in relation to the lien, including the attorney’s entitlement to a lien, any dispute as to the papers subject to a lien under section (a) of this Rule, and the amount of the attorney’s claim. “(2) When no circuit court action has been filed. If a lien is asserted pursuant to this Rule and a related action has not been filed in a circuit court of this State, the attorney, the attorney’s client, or any person who has received a notice pursuant to section (b) of this Rule may file a complaint with a circuit court to adjudicate the rights of the parties in relation to the lien, including the attorney’s entitlement to a lien, any dispute as to the papers subject to a lien under section (a) of this Rule, and the amount of the attorney’s claim.” Maryland’s statutory attorney’s lien takes effect upon the commencement of representation. § 10-501(a) (“an attorney at law has a lien on: (1) a cause of action ... from the time the cause of action arises or the proceeding begins”) (emphasis added).

There is no question that Sommer represented Rhoads in the federal district court proceeding. Therefore, an inchoate statutory lien was effective from the time Sommer began his efforts on behalf of Rhoads. 13 Rhoads argues, however, that the language of the retainer agreement provides that Sommer waived his right to ¹⁵¹ assert a lien if Rhoads lost at the first trial. Rhoads relies on the following language: “Attorney will be entitled to payment of all fees and costs owed upon Client’s receipt of the proceeds of a judgment or settlement upon the conclusion of any action brought by Attorney upon Client’s behalf. If there is no judgment or settlement in favor of Client, Client will pay the outstanding balance to Attorney in $500 monthly installments.” Rhoads interprets “the conclusion of the action brought by the Attorney upon Client’s behalf’ to refer to the judgment entered in favor of the FDIC after the first district court trial.

Thus, Rhoads interprets this portion of the agreement to mean that Sommer did not have a security interest, whether in the form of lien or otherwise, in what remained of Rhoads’ cause of action because there was not a judgment or settlement in her favor at the conclusion of the initial trial. Therefore, Rhoads asserts, the agreement provides that Sommer was limited to collecting the $500 monthly payments from Rhoads in personam. Moreover, because the in personam debt was discharged in bankruptcy, Rhoads argues that Sommer has no remaining claim on the judgment in her favor. We disagree with Rhoads’ reading of the retainer agreement.

As we have often stated, Maryland adheres to the objective interpretation of contracts; because the agreement is clear and unambiguous, we give effect to its plain meaning. See, e.g., Cochran v. Norkunas, 398 Md. 1, 16-17 , 919 A.2d 700, 709-710 , (2007); Slice v. Carozza Properties, Inc., 215 Md. 357, 368 , 137 A.2d 687, 693 (1958). Nothing in the language of the agreement can reasonably be interpreted to mean that Sommer waived his right to assert a lien if Rhoads did not win at the first trial. First, the agreement makes no mention of a waiver of the right to assert a lien; in fact, it makes no mention of a lien at all.

We do not presume that the contract intended to waive a statutory right when there is no waiver in the language of the agreement. Furthermore, nothing in § 10-501 or Md. Rule 2-652 requires that a retainer agreement note the right to an attorney’s lien, and such requirement will not be inferred. Maryland’s statutory attor ¹⁵² ney’s lien takes effect upon the commencement of representation regardless of whether the right to an attorney’s lien is addressed in the parties’ retainer agreement. Second, the Party’s agreement at no point refers merely to the initial trial, or a judgment or settlement from the initial trial.

Instead, the agreement consistently uses language such as “in the event that Client obtains a judgment or settlement in her favor” and “Client’s receipt of the proceeds of a judgment or settlement upon the conclusion of any action brought by Attorney upon Client’s behalf.” 14 (emphasis added). The plain meaning of this language is that it refers to any judgment or settlement that results at the final conclusion of the lawsuit that Sommer filed in district court on Rhoads’ behalf in 1994, not merely the conclusion of the initial trial where judgment was entered in favor of the FDIC. Indeed, the 1994 action was concluded in 2004 when Rhoads’ second appeal to the United States Court of Appeals for the Fourth Circuit was unsuccessful, not when Rhoads lost her initial district court trial. We note also that the language in the retainer agreement corresponds with the language in § 10-501(a), which states that an attorney at law has a lien on “a settlement, judgment, or award that a client receives as a result of legal services that the attorney at law performs.” 15 § 10-501(a)(2).

The language of § 10-501(a)(2) makes clear that an attorney may claim a lien on legal services performed—at any time throughout the action—so long as there is a judgment, settlement, or other award. Finally, we agree with the Court of Special Appeals that the Circuit Court relied improperly on the clause regarding the ¹⁵³ $500 per month payment schedule. The agreement states, “[i]f there is no judgment or settlement in favor of Client, Client will pay the outstanding balance to Attorney in $500 monthly installments.” The Circuit Court interpreted this language only in the context of the first trial and concluded that, because judgment was entered initially for the FDIC, Rhoads’ was relieved of any obligation to pay the entire sum outstanding in the event she obtained a judgment in her favor at some future date upon a retrial. We disagree for several reasons.

As we have noted, the judgment in favor of the FDIC at the district court was not the conclusion of the action. Because there was a judgment in Rhoads’ favor, this language is not applicable. In no way does this language expressly waive Sommer’s right to assert a lien against the subsequent judgment in Rhoads’ favor. The agreement provided specifically that monthly payments of $500 were expected, and it is reasonable to structure a retainer agreement such that a guaranteed and immediate stream of $500 payments is received if there is not a settlement or judgment in the client’s favor. 16 There is no inconsistency between payment by installments over a period of time and holding a security for payments, ie., a lien against the cause of action.

Finally, although the Circuit Court reasoned that a monthly payment schedule of $500 per month was inconsistent with the notion that the payment would be secured by any judgment and, therefore,