Justice Richard Dollinger
Wife’s attorney sought to enforce a charging lien against her IRA, that was funded through a roll-over of her marital share of husband’s IRA. In an issue of apparent first impression, the court questioned if a charging lien under Judiciary Law §475 could be asserted against an IRA, which was generally exempt from creditors’ claims under CPLR 5205. Wife received 38.6 percent of husband’s IRA account that was distributed under a qualified domestic relations order (QDRO), which permitted a roll-over of wife’s marital share into an IRA in her name. The court noted there was no evidence wife colluded to isolate the IRA funds thereby thwarting the attorney’s claims for fees. Further, it stated there was no suggestion in the Domestic Relations Law that an attorney had a charging lien on marital interests in tax-sheltered retirement accounts. Also, the court stated reading the Judiciary Law to create a lien against the IRA roll-over would "elevate the attorney’s claims for fees" over any other creditors’, and give him a right unknown to any creditor under the CPLR. Therefore, the court denied the attorney’s petition for a charging lien, and the matter of the amount of fees in the retaining lien was referred to arbitration.
