Can a D.C. lawyer assert a retaining lien on a former client's files for unpaid fees, and may the lawyer disclose a former trustee's confidences?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 230 (adopted September 15, 1992) arose from a lawyer who had been retained in December 1988 by one of two co-trustees to represent an out-of-state trust, served as counsel at a real-estate sale, and held original closing documents, including two deferred purchase-money promissory notes and a letter of credit. After concluding in early 1989 that he could no longer represent the trust, he withdrew, but roughly $14,000 in fees remained unpaid. He asserted a lien on the client's files and refused several requests to turn them over, the most recent in January 1992. In the meantime, litigation arose, the settlors terminated the original trust and created a successor trust, and a former co-trustee (Trustee B) contended that what the other co-trustee (Trustee A) had told the lawyer was not confidential as against Trustee B.
On the retaining lien, the committee explained that the lawyer's initial assertion of the lien had been proper under the former Code, but that Rule 1.8(i), effective January 1, 1991, bars a lawyer from imposing a lien on any part of a client's files except the lawyer's own unpaid-for work product, and not even then where the client is unable to pay or would face a significant risk of irreparable harm. Read together with Rule 1.16(d), which requires surrendering papers and property to which the client is entitled on termination, the committee concluded the lawyer had to turn over the original promissory notes, the letter of credit, and any other non-work-product documents in response to the post-January 1991 request. The court order adopting the Rules made the new Rules govern the post-1991 refusal, and nothing suggested the client was unable to pay or faced irreparable harm.
On confidences, the committee concluded the lawyer had been counsel to the trust, not to the individual trustees, and presumed that the right to assert the privilege passed to the successor trust, citing Commodity Futures Trading Commission v. Weintraub. Because the settlors had terminated the original trust and thereby removed Trustee B, the committee concluded Trustee B no longer had power to demand disclosure, and the lawyer could not disclose the trust's confidences or secrets to Trustee B without the successor trust's consent, except in the circumstances Rule 1.6(d) describes, none of which appeared applicable.
Currency note
This opinion was issued in 1992, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule 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: Could the lawyer keep the client's files until the unpaid fee was paid?
A: No. The committee concluded Rule 1.8(i), effective January 1991, barred a retaining lien on the client's files other than unpaid-for work product, so the lawyer had to return the original notes and letter of credit.
Q: Did it matter that the lien was first asserted before the 1991 rules took effect?
A: No. The committee concluded the governing conduct was the lawyer's post-1991 refusal to return the documents, so the new Rule 1.8(i) applied even though the lien had been proper when first asserted under the old Code.
Q: Could the lawyer disclose the former trustee's communications to that trustee?
A: No. The committee concluded the lawyer represented the trust, not the individual trustees, and could not disclose the trust's confidences to the removed former trustee over the successor trustees' objection except as Rule 1.6 allows.
Background and rules framework
The opinion interpreted D.C. Rules 1.16(d), 1.8(i), and 1.6. Rule 1.16(d) requires a lawyer, on termination, to surrender papers and property to which the client is entitled. Rule 1.8(i) is the D.C. retaining-lien provision: the Jordan Committee rejected the ABA's proposed Model Rule 1.8(j), which would have preserved the general approval of retaining liens, and substituted Rule 1.8(i), which bars liens on a client's files except for unpaid-for work product, and not even then where the client cannot pay or faces irreparable harm. Rule 1.6 governs the confidences and secrets of the client, which the committee identified as the trust acting through its authorized trustees.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.16(d) / Model Rule 1.16 (surrender of papers and property on termination)
- D.C. RPC 1.8(i) / Model Rule 1.8 (D.C. bar on retaining liens; no general ABA Model Rule counterpart)
- D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)
Cases:
- Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985), control of the attorney-client privilege passes with control of the entity
Other opinions cited:
- D.C. Opinions 59, 90 (1980), 103 (1981), and 107 (1981): the propriety of retaining liens under the former D.C. Code of Professional Responsibility
See also
- DC Ethics Op. 250: Retaining Lien on Former-Client Files for Unpaid Fees
- DC Ethics Op. 242: Holding Documents That May Be Third-Party Property
- DC Ethics Op. 236: Revealing Confidences to Collect Fees in Bankruptcy
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-230
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