LEO: Attorney's Lien - Client's File -  LE Op. 1124


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

Conditioning Client's Request for Copy of Entire

File Upon Payment of Professional Fee.


September 27, 1989


You have advised that you represented a client for approximately two and

one-half years. At present, the client is significantly in arrears in

payment of fees for your professional services. The outstanding balance of

your fee is not in dispute, but the client is either unwilling or unable

to pay. Now the client has requested a complete copy of his entire file,

which is rather extensive in volume.


You wish to know whether you may condition your compliance with the

client's request for a copy of his file upon the payment of your fee.


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 interests, 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 an attorney's lien for

legal fees owed by the client. (See LE Op. 1171) Therefore, 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. Thus, if there is no dispute about the 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, 1989, 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, thereby creating a prejudice to the client.


The Committee is of the opinion that even where a lien has been

appropriately asserted, the lawyer may need to make the file available for

the client's review if totally withholding the file would prejudice the

client. It is further the opinion of the Committee that any charges

imposed upon the client's account for copying the file, as a result of

making the file available to the client, are similarly subject to

available legal remedies for collection, which may not be asserted except

under the appropriate circumstances.


Committee Opinion Reconsideration September 27, 1989




See also LE Op. 1357.