LEO 1101

LEO: Attorney's Lien - Client's File - LE Op. 1101

Attorney's Lien - Client's File - Terminating Representation:

Retaining Client's File to Secure Professional Fee.

September 29, 1989

You advised that an attorney has been contacted by a former client who

has requested her file from the attorney's office; however, the client is

indebted to the attorney's office for legal fees incurred during the

representation.

LE Op. 871 states that an attorney may retain papers relating to the

file to the extent permitted by "applicable law". You wish to know what

the term "applicable law" means and what materials must be returned to the

client.

Disciplinary Rule 2-108(D) states that "Upon termination of

representation, a lawyer shall take reasonable steps for the continued

protection of the client's interest, including giving reasonable notice to

the client, allowing time for employment of another counsel, delivering

all papers and property to which the client is entitled, and refunding any

advance payment of fees that have not been earned. The lawyer may retain

papers related to the client to the extent permitted by applicable law."

It is the opinion of the Committee that the applicable law to which DR:2-

108(D) presently refers is that which relates to any attorney's lien for

legal fees owed by the client. (See LE Op. 1171) In other words, the

retaining lien or the common law possessory lien allows an attorney to

retain a client's documents or property (except for trust funds) currently

in the attorney's possession until the fee for professional services is

paid. Therefore, if there is no dispute about fees and the client has the

ability to meet the financial obligation, the lawyer may assert a

retaining lien on the client's files as security for unpaid legal fees,

unless the withholding of the files would prejudice or damage the client.

ABA Informal Opinion 1461, adopted on November 11, 1980, articulates

several circumstances under which the assertion of an attorney's lien for

fees by retention of the client's file would prejudice the client, and

several criteria which need to be considered in determining whether to

impose the lien.

While allowing an attorney to "retain papers relating to the client," the

general provision of DR:2-108(D) requires that upon termination of

representation, the lawyer must take reasonable steps for the continued

protection of the client's interests (emphasis added). Thus, an attorney

must consider the welfare of the client and whether the retention of the

client's files will materially interfere with the client's subsequent

legal representation, and whether the client would be prejudiced as a

result. Therefore, the Committee is of the opinion that in certain

circumstances the lawyer may be required to permit the client to have

access to the file while the attorney retains possession of the actual

file in order to preserve the lien without prejudicing the client.

With regard to which materials constitute the client's property, the

Committee is of the view that in addition to the obvious fact that items

in the file which were originally provided to the lawyer by the client

continue to be the property of the client, items in the client's file

which constitute attorney's work-product are purchased by the client by

the payment of legal fees. Thus, where there are no legal fees owed, the

client owns the attorney work-product, whether in tangible, documentary

form or in the intangible provision of the attorney's expertise in having

applied the law to the client's fact situation during the course of the

representation. Scroggins v. Powell, Goldstein, Frazier and Murphy, 15

B.R. 232, 240-241 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R.

729 (N.D. 1982).

The Committee opines that an attorney may assert a retaining lien on the

client's property or case file currently in his possession if the client

is unwilling or has refused to pay the attorney's fees and the withholding

of the file would not damage or prejudice the client, or if the retaining

lien is necessary to prevent fraud or gross imposition by the client. Even

where a lien has been appropriately asserted, however, the lawyer may need

to make the file available for the client's review if totally withholding

the file would prejudice the client. A lawyer should be zealous in his

efforts to avoid controversies over fees with clients and should attempt

to resolve amicably any differences on the subject. The lawyer should

consider whether there are less stringent means by which the matter can be

resolved or by which the amount owed can be secured. (See EC:2-25.)

Committee Opinion September 29, 1989

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