Sommer v. Rhoads

ADKINS, J. In this case, we consider whether a statutory attorney’s lien against a client’s cause of action for work performed before the client’s bankruptcy may survive that bankruptcy, even though the attorney did not give the notices required to assert the lien at the time the bankruptcy was filed. We shall hold that it may. FACTS AND LEGAL PROCEEDINGS Appellants Fred S. Sommer, an attorney, and Shulman, Rogers, Gandal, Pordy & Ecker, P.A., his law firm (collectively referred to in the singular as Sommer), appeal the grant of summary judgment in favor of their former client, appellee ³⁹⁸ Lori Denise Rhoads. Appellants are attempting to collect the alleged balance due for attorney’s fees incurred by Rhoads in connection with her employment discrimination lawsuit against her former employer. 1 The First Trial In June 1994, Sommer filed a federal suit on behalf of Rhoads, alleging, inter alia, violations of the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), arising from Rhoads’s 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), cert. denied, 535 U.S. 933 , 122 S.Ct. 1309 , 152 L.Ed.2d 219 (2002). In February 1997, the district court granted summary judgment in favor of the employer on nine of Rhoads’s ten claims. See Rhoads v. FDIC, 956 F.Supp. 1239 (D.Md.1997). A February 1998 jury trial of the remaining FMLA claim resulted in a defense verdict for the employer.

Sommer filed various post-trial motions on Rhoads’s behalf, none of which were successful. Rhoads’s Bankruptcy By that time, Rhoads claims, she had paid Sommer approximately $20,000 in attorney’s fees and costs. On March 27, 1998, Rhoads filed for Chapter 7 bankruptcy, thereby staying the discrimination suit before the time for noting an appeal from the district court judgment expired. See id.

In her bankruptcy schedules, Rhoads listed a $190,000 debt to Sommer for “Legal services” as “an unsecured nonpriority claim.” Rhoads also disclosed her “[cjivil claim for damages,” which she noted resulted in a “judgment for defendant 3/4/96, time for appeal has not expired.” Sommer was identified as a ³⁹⁹ creditor and served notice. He did not file any response or other claim in the bankruptcy proceedings. The bankruptcy trustee concluded that there was no value to the estate in pursuing the litigation through appeal, and ultimately that there was “no property available for distribution from the estate.” He therefore released to Rhoads any interest she might have in the litigation. Rhoads’s debts were unconditionally discharged on July 2,1998.

The First Appeal That summer, Sommer discussed with Rhoads an appeal of the district court judgment. He wrote Rhoads that he was “willing to bring an appeal challenging the special verdict form used” to try the FMLA claim, and, depending on 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 argument 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.” While they continued to negotiate, Sommer noted an appeal on Rhoads’s behalf to the United States Court of Appeals for the Fourth Circuit, in order to preserve her right to challenge the district court judgment. During their discussions about such an appeal, Rhoads questioned, inter alia, whether a new retainer agreement would revive the debt that she believed had been discharged in bankruptcy.

In response, Sommer took the position that, although he did “not intend to seek recovery from you of the unpaid attorney’s fees and costs,” 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 attorney and client continued. Sommer officially withdrew as Rhoads’s attorney, effective August 29, 1998. One month later, on September 28, 1998, ⁴⁰⁰ Sommer asserted an attorney’s lien for $159,729.74 (hereinafter, “Sommer’s Lien Claim”), asserting the right to require the FDIC or the Court “to hold any money payable ... to Ms. Rhoads relating to the action, proceeding, judgment, or award.” Rhoads proceeded with the appeal pro se.

Although the Fourth Circuit affirmed the judgment against Rhoads on her FMLA claims, the appellate court held that the district court erred in granting summary judgment on Rhoads’s retaliation claim under the ADA. See Rhoads, 257 F.3d at 394. The case was remanded for a new trial on that cause of action. 2 See id. According to Rhoads, the ADA retaliation claim was what Sommer refused to pursue on appeal, whereas the FMLA arguments that Sommer advocated as grounds for appeal were rejected as contrary to the plain meaning of the statute.

Not surprisingly, Sommer disputes Rhoads’s contentions, asserting that she prevailed by relying on theories and evidence that he developed in discovery, pleadings, and trial. The Second Trial And Appeal Rhoads continued to represent herself during the second trial. In December 2002, more than four years after Sommer withdrew as Rhoads’s attorney, a federal jury found that the employer terminated Rhoads for asserting her rights under the ADA. The jury awarded Rhoads damages of approximately $120,000.

Rhoads then moved for an award of attorney’s fees and costs. In support, she cited Sommer’s “statutory lien in the amount of $159,729.74” and stated that she had “already paid Mr. 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,” which “was, in all regards, reasonable.” She requested a total award of $175,744.99, which included fees and expenses for legal work ⁴⁰¹ performed by her first attorney, 3 Sommer, and herself. In June 2003, Sommer moved to intervene for the purpose of being heard on the fee issue. The district court denied leave to intervene and also denied Rhoads’s claim for fees and costs.

See Rhoads v. FDIC, 286 F.Supp.2d 532, 545 (D.Md.2003), aff'd, 94 Fed.Appx. 187 (4th Cir.), cert. denied, 543 U.S. 927 , 125 S.Ct. 331 , 160 L.Ed.2d 226 (2004). In its ruling, the federal court pointed out that Rhoads had asserted “that she owes nothing to Sommer as a result of the bankruptcy discharge.” See id. at 543. In addition, “[i]t could be a windfall ... to award her attorney’s fees when she is simultaneously pursuing a judgment for attorney’s fees in another forum.” Id. The court suggested that, “even if [Sommer] were entitled to fees” for work performed prior to Rhoads’s bankruptcy, “the amount 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.” See id. at 542 n. 7.

Finally, the federal court observed that, due to Sommer’s withdrawal “before Rhoads prevailed 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. Rhoads’s second appeal to the Fourth Circuit was unsuccessful. Sommer’s Lien Action In December 2004, Sommer filed in the Circuit Court for Montgomery County a verified complaint in this action, seeking a declaration “that the Attorney’s Lien is valid and enforceable against the” judgment Rhoads obtained in the second trial, and asking the court to “enforce the Attorney’s Lien against” “that judgment.” The amount of Sommer’s lien claim is $159,729.74, the same amount Sommer claimed when he withdrew six years earlier. Sommer also requested injunctive relief to ensure payment of his fees from any FDIC payment ⁴⁰² 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 court interpreted the Retainer Agreement between Sommer and Rhoads to be a waiver of Sommer’s statutory lien rights. It 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’s favor, she would not be obligated to pay more than $500 per month toward the outstanding fee balance. Sommer noted this appeal, raising six issues. 4 We address only the following issues: ⁴⁰³ I. Under the terms of the Retainer Agreement and in light of Sommer’s withdrawal as counsel after the unsuccessful first trial, did Sommer waive his right to a lien against the judgment Rhoads obtained in the second trial?

II

Did Rhoads’s Chapter 7 bankruptcy discharge her debt to Sommer arising from the first unsuccessful trial? We answer both questions no, vacate the judgment, and remand to the circuit court for resolution of the remaining issues that were not decided on summary judgment. DISCUSSION The Retainer Agreement The Retainer Agreement (the Agreement) between Sommer and Rhoads provides for a hybrid attorney’s fee, consisting of both a “Guaranteed Fee” accruing at $100 per hour and a “Contingent Premium” that potentially could raise the total compensation to 30 percent of Rhoads’s recovery “[i]n the event that [she] obtains a judgment or settlement in her favor[.]” 5 The Guaranteed Fee is “payable regardless of whether a judgment or settlement is obtained in Client’s favor.” In no event could the Guaranteed Fee plus the Contingent Premium exceed 30 percent of the total recovery from settlement or judgment. With respect to the payment of fees and costs, the Agreement provides: 1.

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: ⁴⁰⁴ • 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____ 2. 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. (Italics added.) Lien Law Under Maryland common law, attorneys do not have a charging lien.

See Tucker v. Dudley, 223 Md. 467, 472 , 164 A.2d 891 (1960). In 1985, the General Assembly established a statutory attorney’s lien. See 1985 Md. Laws, ch. 723; Con-sol. Constr.

Servs., Inc. v. Simpson, 372 Md. 434, 460-61 , 813 A.2d 260 (2002). Md.Code (1989, 2004 Repl.Vol.), section 10-501 of the Business Occupations and Professions Article (BOP), provides in pertinent part: (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. ⁴⁰⁵ (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 ... bring an action for execution under the lien only in accordance with rules that the Court of Appeals adopts. In turn, Md. Rule 2-652 specifies certain procedures that attorneys must follow to assert a lien under BOP section 10-501: (b) Statutory lien.

An attorney who has a lien under [BOP] § 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 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 ⁴⁰⁶ 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. I. Fee Agreement And Waiver Of Lien The circuit court held that, under the terms of the Retainer Agreement, Sommer was not entitled to assert a statutory lien against the judgment Rhoads obtained in the second trial.

In successfully arguing for that result, Rhoads relied on the provision in the Retainer Agreement stating that Sommer is “entitled to payment of all fees and costs owed upon client’s receipt of the proceeds of a judgment ... upon the conclusion of any action brought by the attorney upon client’s behalf.” (Emphasis added.) Rhoads interpreted “the conclusion of the action brought by the attorney on the client’s behalf’ to refer to judgment entered in favor of the FDIC after the first trial. Under the terms of the Retainer Agreement, Rhoads asserted, the balance due on the guaranteed fees was not “immediately due and payable” as it would have been if Rhoads had prevailed, but rather was due and payable only in $500 monthly installments. Sommer countered that the meaning of the phrase “upon the conclusion of any action brought by the attorney” does not refer to the judgment in the first trial, but to the final conclusion of the entire lawsuit brought by Sommer on Rhoads’s behalf, which is the $120,000 judgment in favor of Rhoads. The circuit court agreed with Rhoads’s construction of the Agreement: [T]he Court finds that the phrase was reasonably understood by the parties to be limited to the initial trial conducted by Sommer. [Rhoads] ... points to numerous exhibits ⁴⁰⁷ which clearly evidence that Sommer interpreted the agreement as being limited to the initial trial....

Since the Agreement covered representation through the initial trial only, then the test of whether the outcome was favorable or not is measured as of the conclusion of that proceeding. Here it was unfavorable. Judgment was entered for the employer. Therefore, Ms. Rhoads’ only obligation under the Agreement was to pay the guaranteed fee at the rate of $500 per month.

This has particular relevance for the issue of whether the attorney’s lien survived the bankruptcy____[Generally an attorney’s lien is perfected upon the commencement of the representation. Therefore, such [perfected] liens typically would not be extinguished in bankruptcy. Here, however, a plain reading of the fee agreement leads inevitably to the conclusion that [Sommer] has waived his right to assert such a lien in the event that a judgment in favor of the employer resulted from the initial trial. ... To grant the attorney a lien would be inconsistent with [Rhoads’s] limited [payment] obligation.

Accordingly, [Sommer] waived his right to assert any attorney lien if judgment was entered in the employer’s favor at the conclusion of the initial trial. For that reason, any obligation owed under this agreement following the initial trial was an unsecured personal obligation of [Rhoads] and was discharged in bankruptcy. Therefore, [Rhoads] is entitled to judgment on [Sommer’s] claim. (Emphasis added.) We disagree with the motion court’s conclusion that the Agreement reasonably can be interpreted to mean that Sommer waived his right to assert a lien if Rhoads lost at the first trial. 6 Rhoads has pointed to no language in the Agreement that says or implies this, and we have found none.

The ⁴⁰⁸ circuit court apparently relied on the clause in paragraph 2 of the Agreement calling for a $500 per month payment schedule, which applied only if there were no judgment or settlement in Rhoads’s favor. The circuit court reasoned that a monthly payment schedule was inconsistent with the notion that the payment would be secured by any judgment, and from this inconsistency, inferred a waiver. We conclude this was error because there is no inconsistency between payment by installments over a period of time and holding security for those payments, ie., a lien against the cause of action. There is nothing in BOP section 10-501 or Rule 2-652 requiring that the proceeds of a cause of action subject to the lien must be immediately paid to the attorney holding the lien.

Both subsections (1) and (2) of Rule 2-652(c) simply direct that “the court shall adjudicate the rights of the parties in relation to the lien[.]” The circuit court could easily direct, for example, that the appropriate part of the amount owed under the judgment or settlement be paid into court or an escrow account, and held as security or paid to the attorney in monthly increments. 7 II. Effect Of Bankruptcy Discharge Rhoads argues we should affirm because she was discharged in bankruptcy before the attorney’s lien attached, ⁴⁰⁹ and therefore she had no indebtedness to Sommer. She reasons that Sommer cannot have acquired a lien because BOP section 10-501 authorizes a lien only to the extent the client “owes ... compensation for services.” Rhoads insists that “[i]t is textbook bankruptcy law that the automatic stay and subsequent discharge injunction bar efforts to collect prepetition debts,” citing In re McNickle, 274 B.R. 477, 480 (Bankr.S.D.Ohio 2002)(“the majority rule, that strictly adheres to the Bankruptcy Code, holds that pre-petition legal services are subject to the discharge, and subsequent collection efforts violate the automatic stay and the discharge injunction”). McNickle , however, did not involve a claim for an attorney’s lien, and there was no judgment or settlement the attorney claimed was produced by his services.

The attorney simply sought compensation for legal work performed for the debtor in connection with the bankruptcy before the bankruptcy filing, and therefore he had the status of an ordinary unsecured creditor. A claimant under an attorney’s lien statute stands in a different position. As the circuit court recognized, generally, a lien survives bankruptcy discharge because the discharge “extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another-namely, an action against the debtor in rem.” Johnson v. Home State Bank, 501 U.S. 78, 84 , 111 S.Ct. 2150, 2154 , 115 L.Ed.2d 66 (1991). 8 Our Court of Appeals has adopted this general rule. See Hernandez v. Suburban Hosp.

Ass’n, 319 Md. 226, 236-37 , 572 A.2d 144 (1990)(“ ‘We follow the majority of courts which hold that the Bankruptcy Code and its legislative history plainly establish the better rule of law-that valid liens that have not been disallowed or avoided survive the bankruptcy discharge of the underlying debt’ ”) (citation omitted). Although the effect of bankruptcy discharge on an attorney’s right to a lien under BOP section 10-501 is a matter of first impression in this state, cases involving ⁴¹⁰ attorney’s Kens in other jurisdictions have held that comparable attorney charging Kens survived the bankruptcy. Many courts interpreting attorney’s Kens have agreed that, although the Ken does not attach until after the bankruptcy, once it does attach, it relates back and takes effect from the commencement of the attorney’s services or the action. See Hanna Paint Mfg.

Co. v. Rodey, Dickason, Sloan, Akin & Robb, 298 F.2d 371, 373 (10th Cir.l962)(“The Ken of an attorney for services rendered in an action relates back to, and takes effect from, the time of the commencement of the services[;] when it attaches to a judgment, it is superior to the claim of a creditor in whose favor execution has been levied, or to a subsequent attachment, garnishment, or trustee process”); Matter of Pacific Far East Line, Inc., 654 F.2d 664, 669 (9th Cir.l981)(“Under California law, the Ken takes effect from the date it was created; upon the fund’s production, the Ken attaches to the specific asset”); In the Matter of TLC of Lake Wales, Inc., 13 B.R. 593, 595 (Bankr.M.D.Fla.l981)(“Although the charging Ken does not attach until after judgment or recovery has been obtained, it relates back and takes effect from the date of the attorney’s first commencement of services”); In re Reinhardt, 81 B.R. 565, 569 (Bankr.D.N.D.1987)(attorney’s pre-bankruptcy charging Ken related back to the date the services commenced, and despite failure to give notice, and without expKcit relation-back language, Ken survived bankruptcy discharge); In re Miller, 17 C.B.C. 28 , 31 (E.D.Pa.l978)(“at the time the bankruptcy was filed the attorneys were looking for payment of a fund to be created, and the fund has now come into existence. Although the charging Ken attached after bankruptcy, it relates back and takes effect from the time the services were commenced ... thus taking priority over the receiver”); In re Kleer-Span Truss Co., Inc., 76 B.R. 30, 31 (Bankr.N.D.N.Y.1985)(relation back appKed when statute provided: “From the commencement of the action, ... the attorney who appears for a party has a Ken upon his cKent’s cause of action, claim, or counterclaim, which attaches to a verdict, [or] ... decision, judgment or final order in his cKent’s favor, and the proceeds thereof’); ⁴¹¹ In re E.C. Ernst, Inc., 4 B.R. 317, 320 (Bankr.S.D.N.Y. 1980)(“The lien relates back and takes effect from the time the attorney’s services were commenced”). 9 These courts did not require that the statute or common law expressly use a term like “relates back.” Rather they rested their decisions on their interpretation of the statute or common law as to the effective date of the lien. See, e.g., In re Reinhardt, 81 B.R. at 569 (noting lack of relation back language in North Dakota and Alaska attorney’s lien statutes). In In re Albert, 206 B.R. 636, 640 (Bankr.D.Mass.1997), the bankruptcy court applied Massachusetts law specifying that the lien dates “from the authorized commencement of an action.” The court explained that the lien was inchoate at the time the lawsuit was filed, and “[t]he lien becomes ehoate when a judgment, decree, or other order is entered in the client’s favor, and attaches to any proceeds derived therefrom.” Id. at 639 .

An earlier bankruptcy court decision, In re Sea Catch, Inc., 36 B.R. 226, 233 (Bankr.D.Alaska 1983), explained the operation of the lien attachment and relation back: In those states which provide that an attorney’s charging lien attaches to a judgment, verdict or order and that the effective date of the lien relates back to the commencement of the attorney’s services, § 546(b) will protect the attorney’s lien from being invalidated by the trustee’s status as a hypothetical lien creditor as of the date of the filing of the petition____ “The general rule is that an attorney’s charging lien relates back to and is effective from the time the attorney commences his services.” (Citations omitted.) The Sea Catch Court also clarified that there is a ⁴¹² distinction between the date an attorney’s lien attaches and the date it becomes effective against a creditor assignee of the attorney’s client. The Ken cannot attach earKer than the entry of judgment, as there is nothing for the Ken to attach to before that date.... Generally, however, once the Ken attaches it relates back and is effective from the time the attorney begins his efforts on behalf of his cKent. Id. at 233.

Because of the relation back, the Ken is not affected by initiation of bankruptcy proceedings. See id. Thus, as Sea Catch instructs, the date of attachment of the Ken is not the material issue in determining whether an attorney’s Ken will survive the cKent’s bankruptcy. Rather, state law governing the effective date of the Ken will determine whether the Ken relates back to the commencement of the action (or the attorney’s representation).

See, e.g., Albert, 206 B.R. at 640 (state law determines whether pre-bankruptcy Ken, once perfected, takes priority over interests which were perfected before the Ken). Rhoads does not agree that Sommer’s Ken relates back to a date preceding her bankruptcy. Relying on Hoffman & Schreiber v. Medina, 224 B.R. 556 (D.N.J.1998), Rhoads argues that Sommer’s Ken right could not survive her bankruptcy discharge because Sommer did not perfect his Ken before the bankruptcy petition, having failed to “assert” the Ken by serving the notice required by Md. Rule 2-652. In Hoffman & Schreiber, as Rhoads contends, the court held that the law firm failed to commence an action to determine and enforce its Ken claim before the cKent filed her bankruptcy petition and therefore the claim was unperfected, unsecured, and discharged.

See id. at 563 . 10 ⁴¹³ We disagree with Rhoads’s contention that Hoffman & Schreiber controls, because of how we construe BOP section 10-501. “ ‘[T]he cardinal rule of statutory construction is to ascertain and effectuate legislative intention.’ ” State v. Green, 367 Md. 61, 81 , 785 A.2d 1275 (2001) (citations omitted). When interpreting a statute, our starting point is the text of the statute. See Adamson v. Corr. Med.

Servs., Inc., 359 Md. 238, 251 , 753 A.2d 501 (2000). “[I]f the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N.B. Handy Co., 366 Md. 467, 473 , 784 A.2d 569 (2001). There is nothing in the Maryland statute or rules that suggests that an attorney’s right to a lien is lost because the attorney does not take steps to enforce the lien before the client files bankruptcy. Rather, BOP section 10-501 explicitly provides that the attorney “has a lien ... from the time the cause of action arises or the proceeding begins,” without any notice requirements. Additionally, Md. Rule 2-652, titled “Enforcement of Attorney’s Liens,” says nothing to suggest that the BOP section 10-501 lien right is lost if the notice required by Rule 2-652(b) is not sent before a bankruptcy filing.

Rather, this rule talks only about how to “assert” the lien. See Md. Rule 2-652(b)(“An attorney who has a lien under Code, Business and Professions Article, § 10-501, may assert the lien by serving a written notice by certified mail or personal deliver upon the client and upon each person against whom the hen is to be enforeed”)(emphasis added). The rule ⁴¹⁴ says nothing about perfection of the lien or losing the lien for failing to serve the written notice within a particular time. Our reading of the statute is also consistent with the purpose of section 10-501 and like statutes, which is “ ‘to protect the rights of an attorney unable to get possession against a client who seeks to avoid payment for services.’ ” Vangrack, Axelson & Williamowsky, P.C. v. Est. of Abbasi, 261 F.Supp.2d 352, 363 (D.Md.2003)(applying Maryland lawXquoting 2 Robert L. Rossi, Attorney’s Fees § 12:13, at 12-23 & n. 10 (3d ed.2001)).

See also Sea Catch, 36 B.R. at 234 (The object of attorney lien statutes is “to furnish security to attorneys for their efforts by giving them a lien upon the subject of the action”). In keeping with this purpose, and given the clear language of the statute, we think that in a contest between the attorney and the trustee, general creditors, or the bankrupt client herself, the requirement that notice be given in order to assert the lien is a condition for enforcement of the lien, but not for continuation of the right to a lien. In other words, failing to comply with the notice requirement does not interfere with the attorney’s lien priority over general creditors of the client, including a trustee in bankruptcy, or cause the attorney to lose the Ken in a dispute with the client herself. In construing and applying the notice requirement in Rule 2-652, we find helpful the reasoning of the Sea Catch bankruptcy court, which discussed the notice provision in the Alaska attorney’s lien statute: [A] special agreement for compensation .... would have related back to be effective against not only an assignee (who takes subject to the contractual obligations of his assignor), but also against any third party who claims a right to the fund in question.

The notice provision is for the purpose of protecting a judgment or potential judgment debtor, not a third party creditor. It would be inequitable to give a third party creditor (or a trustee representing such creditors) a prior right over the value of the pre-petition services which contributed to the ⁴¹⁵ creation of the fund, especially in a case such as the instant one where the fund in question was awarded as compensation for the attorney’s services. Sea Catch, 36 B.R. at 234 (footnote omitted; emphasis added). We think that the Court of Appeals, in adopting the requirement of Rule 2-652(b) that the attorney send notice to “each person against whom the lien is to be enforced,” intended, inter alia, to protect the judgment debtor from innocently paying all the money to satisfy the judgment (that the attorney helped produce), to the client or his assignee. 11 Given this purpose, the failure to send notice to Rhoads’s employer would not justify giving Rhoads’s general creditors or her trustee in bankruptcy priority ahead of Sommer.

Moreover, there is no ⁴¹⁶ showing that Rhoads’s employer actually paid out the judgment to the client or someone else, in ignorance of Sommer’s lien.- A second purpose of the notice requirement in Rule 2-652 is to satisfy the due process concerns recognized in Barry Props., Inc. v. Fick Bros. Roofing Co., 277 Md. 15 , 353 A.2d 222 (1976), by guaranteeing that the client knows of the attorney’s intent to enforce the lien before the attorney is able to transfer a possessory interest to himself as a part of his enforcement action. See Mar. 10, 1995 Minutes of Court of Appeals Standing Committee on Rules of Practice and Procedure (“Section (b) has a constitutional requirement of notice by certified mail or personal delivery which is similar to the notice required in mechanics’ liens”). As we discuss in Section III, infra, Rhoads suffered no impairment of her due process rights from Sommer’s failure to give notice of his lien before she filed bankruptcy, because any loss or injury she suffered from the existence of the lien before she received notice was not sufficiently severe or grievous to violate such rights.

Sommer’s Failure To File Claim In Bankruptcy Rhoads also insists that Sommer cannot now claim an attorney’s lien because he failed to file any claim for such lien in Rhoads’s bankruptcy. Sommer, however, correctly points out that the trustee in Rhoads’s bankruptcy abandoned the cause of action, and thus never initiated an adversary proceeding to avoid the lien pursuant to 11 U.S.C. § 545 (2). 12 Sommer is also right that, as a result of this abandonment, he was not required to file any proof of claim in the bankruptcy estate. See In Re Marriage of Berkland, 762 P.2d 779 , 783 ⁴¹⁷ (Colo.Ct.App.1988). “The effect of abandonment by a trustee is to divest the bankruptcy estate of control over the abandoned property and revest title in the debtor. In doing so, the property becomes part of the debtor’s non-bankruptcy estate, just as if no bankruptcy occurred.” In re Moody, 277 B.R. 858, 861 (Bankr.S.D.Ga.2001).

In Personam v. In Rem Pursuing a different line of attack, Rhoads contends that Sommer’s attorney’s lien rights are conditioned on the viability, after bankruptcy, of his in personam, cause of action against Rhoads. We do not agree. An attorney’s lien under B.O.P section 10—501(b) is an action in rem. Although section 10—501(b) recognizes the lien only 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