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.