Sam Shaw was a photographer who took thousands of celebrity snapshots, including the one of Marilyn Monroe standing on the subway grate. Before he died, Shaw and his son were involved in contentious litigation over ownership of more than 200,000 photos.

When Shaw died, his two daughters were appointed temporary administrators to prosecute the ongoing action against their brother, and they appointed a receiver of another 500,000 photographs which had been in Shaw's possession. The receiver stored the photographs in a warehouse, where they were damaged. The receiver filed a $2 million claim with the insurer, which then filed for bankruptcy protection; the claim was turned over to the New York State Liquidation Bureau and assigned to an adjuster, but remains unresolved.

The original litigation was finally settled, but, subsequently, there were fee disputes between the parties and their attorneys, on both sides, which the First Department addressed, in Tunick v. Shaw, which was decided on September 13, 2007.

Here, plaintiff had represented Shaw's son in the original action, and under a written retainer agreement, he would bill at $200 an hour. The sisters' counsel billed at $300 an hour, and, pursuant to the written retainer agreement, double that rate if he obtained for the sisters the photos in question or certain monies flowing from the photos.

Plaintiff commenced this special proceeding to fix his charging lien, pursuant to Judiciary Law § 475, of more than one-half million dollars, and to attach the lien to the 700,000 photographs and any insurance proceeds settling the storage claim. The sisters' counsel cross-petitioned to fix his charging lien at more than a million dollars, representing the double fee rate as recited in his retainer agreement.

The court said that, although the disputed photographs were in existence before the attorneys got involved, their efforts resulted in the settlement, sorting out the ownership questions and creating a single collection, thus constituting proceeds from litigation upon which a charging lien can affix.

The court also said that charging liens attached to any insurance proceeds for damage to the photographs while in storage. The court explained that the enforcement of a charging lien is founded on the equitable notion that settlement proceeds are ultimately under the control of the court, and the parties within its jurisdiction, and the court must see that no injustice is done to its own officers. A charging lien follows the course of the litigation, wherever that goes, and follows the proceeds, whatever their source.

The court said that, in effect, proceeds of the insurance claim for the damaged photographs are the photographs in a different form, and therefore the charging liens attach to those insurance proceeds, even though the receiver, and not the attorneys themselves, had been prosecuting the insurance claim.

The court noted that Shaw's son had never denied receiving his attorney's bills, and he never protested their amounts, and so the attorney has a charging lien in that amount, plus contractual interest.

Finally, the court said the sisters' attorney could collect on the double-rate fee arrangement since it was clearly specified in the retainer agreement.