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Crockrom hired Grimes to represent her in a medical malpractice action on an hourly basis. After he filed a proposed complaint for damages with the Indiana Department of Insurance, Grimes withdrew as Crockrom's counsel. Crockrom's new counsel was unable to obtain certain medical records that were in Grimes's file. Grimes said that he would release those records if Crockrom paid the attorney's fees owed him or provided adequate security that those fees would be paid. Crockrom refused to provide adequate security and issued a subpoena duces tecum to Grimes demanding that he produce the medical records. Grimes moved to quash the subpoena and the trial court denied that motion.

On appeal, the Court recognized an attorney's common law "right to retain possession of a client's documents or other property which comes into the hands of the attorney professionally, until a general balance due the attorney for professional services has been paid." The trial court could only order that Grimes provide those documents if it provided for adequate security for the payment of the outstanding fees. In a footnote, the Court noted that attaching the lien to the settlement or favorable judgment in the pending action was inadequate security.

Crockrom argued that Grimes was not entitled to adequate security for his lien because he did not provide any documentation of the amount she owed. The Court held that Grimes's failure to include this documentation did not invalidate the lien. "[T]he reasonableness of a fee, as reflected by an attorney's lien, is irrelevant to the determination of whether the lien has been established."

Crockrom then argued that the contract between she and Grimes provided her with the right to those medical records. However, the Court found that Crockrom's access to the file and Grimes's retaining lien are not mutually exclusive.

Finally, the Court instructed us on the proper procedure an attorney should follow when in this situation. It held that "[t]he amount of security should correspond with the amount of fees owed." Therefore, the trial court was obligated to hold a hearing on the attorney's fees claimed by Grimes, so that it could then determine what amount constitutes adequate security.

Thus, the lesson in this case to attorneys seeking adequate security for the payment of an attorney's lien is to present evidence regarding the amount and reasonableness of the fee in the motion to quash, so that the trial court will have all of the information necessary to determine what would be adequate security for your attorney's lien.

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United Water operates a waste water treatment plant. Harris was hired to work as an operator at United Water's plant. His job included monitoring equipment, taking samples, and clearing waste water and "sludge' on occasions when equipment clogged or malfunctioned. Harris was provided with overalls, safety glasses, and a helmet, but other protective gear, such as gloves, goggles, and face shields were not always available when needed.

On December 15, 2005, Harris was splashed in the face with waste water, and he believed that he ingested some of the waste. Harris noted immediate symptoms, including pain in his mouth. Harris went to the emergency room, where it was determined that he had a dental cavity and a sebaceous cyst on his chin.

In February 2006, Harris began suffering from acid reflux. His symptoms worsened over time until, in August 2007, Harris was taken to the emergency room because he had severe abdominal pain and was having difficulty breathing. He was diagnosed with a perforated ulcer, and he underwent surgery.

On May 2, 2008, Harris filed an application for adjustment of claim with the Board, which indicated that he was pursuing a worker's compensation claim and an occupational disease claim. United Water moved to dismiss for lack of subject matter jurisdiction. United Water's theory was that all of Harris's medical conditions stemmed solely from the December 15, 2005, incident when he was splashed in the face with waste, and because Harris did not file his claim until more than two years later, the statute of limitation had run. Harris argued that his claim was for an occupational disease and, therefore, the statute of limitations had not run. The Board granted the motion to dismiss.

On appeal, the Court noted that it had "not consistently applied a single standard of review" to an appeal from an administrative agency's ruling on a motion to dismiss. It decided that it should apply the same standard of review in this situation that the Indiana Supreme Court applied to an appeal to an administrative agency's grant of summary judgment in Northern Indiana Public Service Co. v. United States Steel Corp., 907 N.E.2d 1012 (Ind. 2009), rather than a de novo standard of review.


Even though it was applying a more deferential standard of review, the Court found that the Board had erred in dismissing the case, because of the particular facts of the case. In doing so it noted that its confidence in the Board's decision was "undermined" because the Board had adopted United Water's findings in that order.


In particular, the Court was troubled by language in the Board's decision that indicated that it placed the burden of proof on Harris to show that his claim should not be dismissed.


The court reversed and remanded for the Board to reconsider the motion to dismiss applying the correct burden of proof.

It appears clear from the Court's decision that courts will not be using a de novo standard of review in appeals from administrative agencies. This appears to have directly led to the ultimate outcome in this case, a reversal with a remand to reconsider, rather than an outright reversal. People who do not engage in much appellate practice must remember that standards of review make a difference.