The purpose of a solicitor’s lien, also known as a lawyers’s lien, was described in our Court of Appeal in Wilson King v. Lyall (1987) 37 DLR(4th) 512:
“The object of the (now Legal Professions act) is to give the lawyer, the extraordinary privilege of a lien in order to protect him or her against the unfair result of having by his or her efforts preserved assets for the benefit of all, and of getting no benefit from those efforts.”
The court must be persuaded that it would be “just and proper” to grant the privilege of a lien.
Before exercising the court’s discretion, it must be satisfied that the solicitor recovered or preserved property as a result of the proceeding in which his or her fees and disbursements arise. The property against which the charge arises or attaches must be property so recovered or preserved.
The lien must relate to what the lawyer was hired to do and what the lawyer accomplish; it can only go against the property that the lawyer recovered or preserved as the case may be.
If this condition is met, the lien is generally said to attach to the preserved a recovered property itself, and not only to the clients interests therein, as the solicitor’s efforts are regarded as those of a “ salvor”
In Greer v. Young (1883) 52 LJ Ch.915 ( CA) , the court stated regarding the statutory lien:
“It is a salvage section. The solicitor employed lawfully in an action is a salvor who has recovered or preserved something in the hour of danger by his or her work and labor, and he or she is entitled to a reward; into whatever hand, the property may fall, it is charged with the salvage.”
The solicitor’s lien generally takes priority over the other liens attached to the property, but there are statutory exceptions.
Wang v Jiang 2020 BCSC 901 saw the dismissal of two law firms claims for solicitor’s liens over funds, as the court found that no property was recovered by either of the two law firms, nor were they able to preserve the property from which the monies they held in trust were derived.
The court was sympathetic for the work done by the law firms without remuneration, but found that their services could not be remunerated from funds that did not belong to their clients..