Hello everyone and welcome to this Ethics Alert will discuss the lawyer’s ethical obligations to surrender papers and property to which the former client is entitled after termination of the representation and asserting retaining liens. American Bar Association Formal Ethics Opinion 471 provides a good overview of these ethical obligations. The July 1, 2015 ABA formal ethics opinion is here: ABA Ethics Opinion 471.
ABA Model Rule 1.16, Declining or Terminating Representation is substantially similar to Florida Bar Rule 4-1.16 and requires lawyers to surrender “papers and property to which the client is entitled.” Neither the Model Rule of the Florida Bar Rules provide a definition of these terms.
The ABA opinion discusses the approaches taken in various jurisdictions and notes that the majority (including Florida) use the “entire file” analysis, wherein clients are entitled to receive all items in the file unless the lawyer can show that the item would fall under one of the generally accepted exceptions, which include the following:
“ materials that would violate a duty of nondisclosure to another person; materials containing a lawyer’s assessment of the client; materials containing information which, if released, could endanger the health, safety or welfare of the client or others; and documents reflecting only internal firm communications and assignments.”
In Florida, the client file is the property of the lawyer and the lawyer may assert a retaining lien on the client file after the representation is terminated; however, Florida Bar Rule 4-1.16(d) states that, upon termination, the lawyer must surrender papers and property to which the client is entitled, take all steps to mitigate the consequences of the termination to the client, and “may retain papers and other property as security only to the extent permitted by law.”
Florida Ethics Opinion 88-11 (Reconsideration) states:
“Many attorneys are unaware that in Florida a case file is considered to be the property of the attorney rather than the client. Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn]. Under normal circumstances, an attorney should make available to the client, at the client’s expense, copies of information in the file where such information would serve a useful purpose to the client. Opinion 71-37 [since withdrawn].
In appropriate situations, however, an attorney is entitled to refuse to provide copies of material in the file and instead may assert an attorney’s lien. Such situations include a client’s refusal to reimburse a discharged attorney for the attorney’s incurred costs or to provide a reasonable guarantee to the attorney that the costs will be repaid at the conclusion of the case. See Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for an attorney to assert a lien with respect to materials in a case file, the validity and extent of the lien is a question of law to be decided by the courts.
Florida common law recognizes two types of attorney’s liens: the charging lien and the retaining lien. The charging lien may be asserted when a client owes the attorney for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the attorney must show: (1) a contract between attorney and client; (2) an understanding for payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith , 486 So.2d 559, 561 (Fla. 1986). The attorney should give timely notice of the asserted charging lien by either filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is preferred.
Unlike a charging lien, a retaining lien may be asserted with respect to amounts owed by a client for all legal work done on the client’s behalf regardless of whether the materials upon which the retaining lien is asserted are related to the matter in which the outstanding charges were incurred. A retaining lien may be asserted on file materials as well as client funds or property in the attorney’s possession, and may be asserted whether or not a suit has been filed. Mones , 486 So.2d at 561. Florida Bar Ethics Opinion 88-11 (Reconsideration is here: http://www.floridabar.org/TFB/TFBETOpin.nsf/SMTGT/ETHICS,%20OPINION%2088-11%20(Reconsideration).
An attorney’s right to assert a lien may be limited, however, by the ethical obligation to avoid foreseeable prejudice to the client’s interests. What papers or documents must be furnished to a client in a particular case in order to avoid prejudicing the client’s interest therein will necessarily depend on the specific facts and circumstances involved.
Some jurisdictions follow the “end product” analysis. Under this analysis, clients are entitled only to those items that are the end product of the representation, and may not be entitled to receive the documents or other materials that led up to the end product.
“…Under these variations of the end product approach, the lawyer must surrender: correspondence by the lawyer for the benefit of the client; investigative reports and other discovery for which the client has paid; and pleadings and other papers filed with a tribunal. The client is also entitled to copies of contracts, wills, corporate records and other similar documents prepared by the lawyer for the client. These items are generally considered the lawyer’s “end product.”
Under this alternative analysis, administrative documents, internal memoranda and preliminary drafts of documents do not have to be returned; however, internal notes and memos may need to be turned over if the final product of the representation has not yet emerged and nondisclosure could harm the client.
Bottom line: Lawyers must be aware of the requirements of their jurisdictions regarding the return of a client’s file after termination of the representation and before contemplating the assertion of a retaining lien on the client’s file.
Be careful out there!
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Please note: Effective June 27, 2016, my new office address is:
29605 U.S. Highway 19 N., Suite 150, Clearwater, Florida 33761
E-mail addresses and telephone numbers below will remain the same.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N., Suite 150,
Clearwater, Florida 33761
Office (727) 799-1688
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