After a D.C. lawyer is fired in a contingent-fee case, can the lawyer tell successor counsel about a charging lien without breaching client confidentiality?
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This page answers the general question as of 2020. 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 379 (published December 2020) answers whether a discharged lawyer's confidentiality duty under Rule 1.6 prevents the lawyer from giving notice of a charging lien to the former client's successor counsel or another likely custodian of the funds. The Committee's answer is no. A charging lien in the District of Columbia is a creature of local common law: it attaches to the proceeds of a claim the lawyer pursued where the lawyer and client understood the fee would be paid out of the recovery. The lien is asserted by giving notice to those likely to control the encumbered funds before they are distributed to the client, and the opinion concludes such a charging lien is a "just claim" that successor counsel cannot ignore in disbursing proceeds (drawing on D.C. Opinion 293 and Rule 1.15).
The confidentiality analysis turns on what the notice contains. The opinion concludes that simply notifying successor counsel that a lien exists does not disclose a protected confidence or secret. But absent the former client's consent, the notice must not include information that would be embarrassing or likely detrimental to the client, such as the client's lack of resources or past refusals to pay. The opinion distinguishes the fee-dispute exception in Rule 1.6(e)(5), which permits disclosure of confidences or secrets only "to the minimum extent necessary in an action instituted by the lawyer" to establish or collect the fee. A client's mere refusal to pay does not trigger that exception; disclosure is allowed only within the context of an actual action, and even then must be narrowly tailored, using John Doe pleadings, protective orders, and in camera or sealed filings to limit exposure.
The opinion also restates the surrounding framework. Under Rule 1.8(i) and Rule 1.16(d), D.C. has sharply limited retaining liens since 1991 (a lawyer generally may not hold a client's file hostage, especially where the client cannot pay or would suffer irreparable harm), but did not similarly restrict charging liens. It notes, citing ABA Formal Opinion 487, that successor counsel in a contingent-fee matter may have to alert the client that prior counsel may claim a fee from any recovery, and that disputed funds must be held in trust under Rule 1.15 until the dispute is resolved.
In practice
Under the D.C. rules as they stood at the time of the opinion, a lawyer discharged before recovery in a matter secured by a charging lien may give notice of the lien to successor counsel or another likely holder of the funds, and the opinion concludes that bare notice of the lien does not breach Rule 1.6. The opinion concludes that, absent the former client's consent, the notice must leave out the client's lack of resources, history of nonpayment, and other embarrassing or detrimental secrets.
The opinion concludes that any further enforcement or collection must proceed under the fee-dispute framework: the Rule 1.6(e)(5) exception applies only once the lawyer institutes an action and then only to the minimum extent necessary, with protective orders and sealed or in camera filings used to the maximum extent possible. It also frames the charging lien as a "just claim" that successor counsel must respect under Rule 1.15 by holding disputed funds in trust. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.
Common questions
Q: Can a discharged lawyer tell the new lawyer about a charging lien without breaching confidentiality?
A: The opinion concludes yes; notifying successor counsel or another likely custodian of the funds that the charging lien exists does not, by itself, reveal a protected confidence or secret under Rule 1.6.
Q: What can the lien notice not say?
A: The opinion concludes that, absent the former client's consent, the notice must not include the client's lack of resources, past refusals to pay, or other information whose disclosure would be embarrassing or likely detrimental to the client.
Q: Does the client simply refusing to pay let the lawyer disclose confidences to collect?
A: No. The opinion concludes the Rule 1.6(e)(5) exception applies only in an action the lawyer institutes to establish or collect the fee, and even then only to the minimum extent necessary, with protective orders and sealed or in camera filings used where possible.
Q: What must successor counsel do about the prior lawyer's claim to the recovery?
A: The opinion concludes a charging lien is a "just claim" successor counsel cannot ignore, so disputed funds must be held in trust under Rule 1.15 until the dispute is resolved, and (per ABA Op. 487) the client may need to be told prior counsel could claim a fee.
Q: Can a D.C. lawyer hold the client's file until the bill is paid?
A: Generally no. The opinion notes that since 1991, Rule 1.8(i) and Rule 1.16(d) have sharply limited retaining liens in D.C., particularly where the client cannot pay or withholding the file would risk irreparable harm.
Background and rules framework
The opinion interprets D.C. Rule 1.6 (confidentiality of confidences and secrets) and its fee-collection exception in Rule 1.6(e)(5), together with Rule 1.8(i) (lawyer liens), Rule 1.15 (safekeeping property and handling disputed funds), Rule 1.16(d) (duties on termination), and Rule 1.5 (fees). It situates the D.C. charging lien in local common law (Pink v. Farrington; Wolf v. Sherman) and builds on D.C. Opinions 230 and 293 and ABA Formal Opinion 487.
Citations and references
Rules of Professional Conduct:
- D.C. RPC 1.6, 1.6(e)(5) / Model Rule 1.6 (confidentiality; fee-collection exception)
- D.C. RPC 1.8(i) / Model Rule 1.8 (lawyer liens; limits on retaining liens)
- D.C. RPC 1.15 / Model Rule 1.15 (safekeeping property; disputed funds held in trust)
- D.C. RPC 1.16(d) / Model Rule 1.16 (duties on termination)
- D.C. RPC 1.5 / Model Rule 1.5 (fees)
Cases:
- Pink v. Farrington, 92 F.2d 465 (D.C. Cir. 1937), D.C. charging-lien rule
- Wolf v. Sherman, 682 A.2d 194 (D.C. 1996), charging lien narrower than English common law
- D.C. Redevelopment Land Agency v. Dowdey, 618 A.2d 153 (D.C. 1992), enforcing a charging lien against a custodian with notice
- Kaushiva v. Hutter, 454 A.2d 1373 (D.C. 1983), discharged contingent-fee lawyer's recovery
Other opinions cited:
- ABA Formal Op. 487 (2019): successor counsel's duty to disclose prior counsel's potential fee claim
- D.C. Bar Legal Ethics Op. 293: handling property subject to a third party's "just claim"
- D.C. Bar Legal Ethics Op. 230: file materials that are not work product are not subject to a retaining lien
See also
- ABA Formal Op. 487: Fee Division With a Client's Prior Counsel
- Colorado Formal Op. 110: Charging Liens and Security Interests
- ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
- DC Ethics Op. 389: Flat Fees, Subscription Fees, and Disbarment
Source
- Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-379
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