When a client owes a fee on one matter but discharges the firm, can the firm hold the files for the client's other, fully-paid matters?

Plain-English summary

A firm held five separate files for one client on five different matters. The client had paid in full for Matters 1 through 4 but owed an account receivable on Matter 5, then directed the firm to transfer his files to a new firm. The firm asked whether its lien under Ala. Code §34-3-61 reached all the papers in its possession (Matters 1 through 5) or only the Matter 5 papers, and whether the answer changed if all five matters' work product were kept in a single integrated file.

On the first situation, the Disciplinary Commission concluded that, as a matter of ethics, the firm had a lien only on the papers relating to Matter 5 and had to release the other files per the client's instructions. The opinion restated the Commission's repeated holding that a client's files belong to the client absent a fee dispute or attorney's lien, citing RO-86-02, RO-91-06, and RO-90-92. It quoted RO-86-02: subject to the attorney's lien under §34-3-61, the attorney must provide copies of a client's complete file on request where the material was delivered to the lawyer by the client or consists of an original document the lawyer prepared for the client; and where the attorney has received full compensation for services on a given file, he must surrender those materials to the client on request. The opinion noted this principle was reaffirmed in RO-87-148.

On the second situation, the Commission concluded that if the work product for Matters 1 through 5 is so intricately interwoven that it cannot be segregated with reasonable effort, the statute would appear to allow the attorney's lien to attach to the entire work product (the whole integrated file). If, however, the Matters 1 through 4 work product can be segregated with reasonable effort, the answer is the same as in the first situation: the paid files must be released.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. It also turns on a specific Alabama attorney's-lien statute (§34-3-61) as it then read. Subsequent rule or statutory amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm withhold files for fully-paid matters because the client owes a fee on a different matter?

A: Per the opinion, no, where the files can be segregated. The lien reached only the unpaid matter's file; the paid matters' files had to be released to the new firm as the client directed.

Q: What is the general rule on who owns the client file?

A: The opinion restated that a client's files belong to the client absent a fee dispute or attorney's lien, and that on full payment for a given file the lawyer must surrender those materials on request.

Q: What if all the matters share one integrated file that cannot be separated?

A: The opinion concluded that if the work product cannot be segregated with reasonable effort, the statute would appear to let the lien attach to the entire integrated file.

Background and rules framework

The opinion interprets Rule 1.16 (Model Rule 1.16, declining or terminating representation, including surrender of papers and property) of the Alabama Rules of Professional Conduct in light of the Alabama attorney's-lien statute, Ala. Code §34-3-61 (1975).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / Ala. R. Prof. C. 1.16 (termination; surrender of client papers and property)

Statutes:

• Ala. Code §34-3-61 (1975) (attorney's lien)

Other opinions cited:

• RO-86-02: client must receive copies of the complete file, subject to the §34-3-61 lien
• RO-91-06; RO-90-92; RO-87-148: client's files belong to the client absent a fee dispute or lien

See also

• AL Ethics Op. 1986-02: attorney must provide copies of the client's complete file
• AL Ethics Op. 1990-92: disclosure of file contents pursuant to a subpoena

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-05/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-05.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-92-05

QUESTION:

"Fact Situation No. 1: A law firm (the "Firm") represents a client (the "Client") and maintains five different files relating to five different matters ("Matter 1, Matter 2, Matter 3, Matter 4, Matter 5") all of which are different. The Firm has an account receivable due from the Client relating to work performed on Matter 5, but all amounts due the Firm for previous work performed on Matters 1 through 4, inclusive, have been paid in full. The Client has delivered a letter to the Firm directing the transfer of his files to a different firm (the "New Firm"). With respect to the foregoing, please respond to the following questions:

1. Does the Firm have a lien, pursuant to Section 34-3-61 Code of Alabama (1975), on all papers of the Client in its possession, which would include all papers relating to Matters 1 through Matters 5, inclusive, even though Matters 1 through 4 were not in reference to the services rendered creating the purported lien, or

2. Does the Firm have a lien solely on the papers relating to Matter 5 and thus must release to the New Firm, in accordance with the Client's instructions, all files relating to Matters 1 through 4, inclusive.

Fact Situation No. 2: Assume the same facts that are contained in Fact Situation No. 1 except that all work product of the Firm relating to Matters 1 through 5, inclusive, has been maintained and kept in one file of the Client. Would the questions set forth in Fact Situation No. 2 be answered in the same manner, and if not, please explain?

Because client matters are now pending and work has been requested on various client files, (much of which is a matter of urgency), the ability to perform services is dependent on your ruling on the above facts. Accordingly, please expedite your response to this ruling request."

ANSWER:

Fact Situation No. 1: As a matter of ethics it would appear that the firm would have a lien only on the papers relating to Matter 5, and must therefore release the client files in accordance with the client's instructions.

DISCUSSION:

The Disciplinary Commission has repeatedly held that the files of a client belong to the client absent some fee dispute or attorney's lien. See RO-86-02, RO-91-06, and RO-90-92, attached. Specifically, in RO-86-02, the Commission stated:

"Subject to the attorney's lien provided for in Code of Alabama (1975), §34-3-61, the attorney must provide copies of a client's complete file to the client upon request if it is material delivered to the lawyer by the client or if it consists of an original document prepared by the lawyer for the client."

The Commission further opined that:

"Where the attorney has received full compensation for his services rendered in connection with a given file, he must surrender these materials to the client upon the client's request." (Emphasis supplied).

This principle was reaffirmed in RO-87-148, attached hereto, which fully cites the then applicable disciplinary rule, as well as the statutory provision concerning attorney's liens.

ANSWER:

Fact Situation No. 2: If the work product of the firm relating to Matters 1 through 5, inclusive, is so intricately interwoven that it cannot be, with reasonable effort, segregated, the statute would appear to allow the attorney's lien to attach to the entire work product.

DISCUSSION:

The work product of the firm relating to Matters 1 through 5, inclusive, may or may not be subject to segregation. If the work product is such that the matters for which the firm has been compensated cannot be, with reasonable effort, separated from the whole, the language of the statute would appear to protect all papers of the integrated file.

If, on the other hand, with the exercise of reasonable effort, such segregation of the work product relating to Matters 1 through 4 can be accomplished, then the answer to Fact Situation No. 2 would be the same as that stated in Fact Situation No. 1, above.

JAM/bm

3/11/92