A charging lien “is an equitable right to have costs advanced and attorney’s fees secured by the judgment entered in the suit wherein the costs were advanced and the fee earned.” Zutrau v. Jansing and ICE Systems, Inc., C.A. No 7457-VCP (Del. Ch. Dec. 8, 2014). Can this lien be extended to include the fees of experts? That question, which was one of first impression in Delaware, was posed to the Court of Chancery in the case of Zatrau.
In Zatrau, counsel had not paid the expert’s fees and was not contractually obligated to do so. Counsel alleged, however, that including the expert’s fees in the charging lien was necessary because if the expert’s fees were not paid by the client then counsel’s ability to retain experts in the future could be impaired. The Court was not convinced by counsel’s argument. The Court noted that the rationale underlying the basis for a charging lien is compensating the attorney for his or her efforts. Based on this rationale, and the absence of evidence that counsel was liable to the expert for fees, the Court concluded there was no basis for including the expert’s fees in a charging lien.