Legal ethics Opinion 1503

Asserting Possessory Lien for Fees Over Property Entrusted to
Attorney as Custodian

You have advised that Client first engaged law firm to represent
him in (1) his attempts to "work out" his mounting debt, and (2)
to obtain a no-fault divorce from his wife.  Client later decided
to file a fault-based divorce action, which was highly contested
by his wife.  After the divorce action was filed by Client,
Client's wife removed from Client's home personal property valued
at approximately $9,000.  Client asserted to the law firm that
the property which the wife removed was his separate property and
that he had a previous divorce decree which awarded it to him as
his separate property.

You further indicate that the wife and her attorney agreed to
deliver the personal property to Client's attorney to hold in
trust until a neutral third party custodian could be appointed. 
A motion was then filed by the law firm asking the court to
appoint a third party custodian.  Client agreed that the attorney
could be custodian of his property until a third party custodian
was appointed.

After some time, the wife advised Client's attorney and law firm
that the property could be returned to her but not to Client.  

Client then requested that the property be returned to him and
discharged the attorney before the case could be resolved.  At
the time of discharge, Client owed attorney and his law firm
$4,000-$5,000 on his account.  You advise that, despite the fact
that Client initially consulted with the attorney for a debt
"work out", Client always advised the law firm that he would be
able to pay the fees which were being incurred to prosecute and
defend the divorce action. 

Subsequently, the court in which the divorce action was pending
entered an order granting the law firm leave to withdraw as
counsel of record.  The law firm wrote to Client and advised
Client that it was asserting an attorneys' lien against the
property which was in its possession until such time as the
client made some arrangement for the

You have asked the committee to opine whether, under the facts of
the inquiry, the law firm may ethically assert an attorney's lien
over the client's personal property which is in the law firm's
possession until such time as the client agrees to provide other
security for the fees which the client has incurred with the law
firm.

The committee has considered your inquiry and determined that,
since the law firm is holding the client's personal property as
trustee, the question raises a legal issue the resolution of
which requires a factual determination beyond the committee's
purview.

Committee Opinion
December 14, 1992