Can a lawyer assert a retaining or attorney's lien over a client's documents and funds in the lawyer's custody when the client refuses to pay fees?

Plain-English summary

A member's inquiry recited that a lawyer in his firm had begun divorce proceedings against his wife, while the firm had been representing the wife's father in various matters, including two large condominiums. The father owed the firm unpaid legal fees, had refused to pay, and had filed a pending grievance against members of the firm. The firm had told the father it did not wish to continue representing him and presented a statement for services rendered. A sum was on deposit in a "condominium account" (assumed by the committee to be a firm trust account), and the firm held condominium documents and certain "condominium forms" the office had prepared for its own condominium enterprises. The father demanded that the lawyer transmit all "printed forms" to him. The lawyer asked (1) whether he should transmit "all printed forms"; (2) whether he could ethically assert a lien on the forms and other condominium documents; and (3) whether the firm could assert an attorney's lien over the funds in the condominium account.

The committee said it had no authority to pass on questions of law and expressed no opinion on whether the firm was legally entitled to take the contemplated action. One member believed the committee should decline to answer at all because of the pending grievance, but since the grievance did not appear related to the contemplated action, a majority believed it could respond in limited fashion. Subject to those observations, a majority concluded that it is not unethical for an attorney to exercise a retaining or attorney's lien to which the attorney is entitled by law, and the committee said it could not answer the inquiry more specifically.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 14 of the Canons of Professional Ethics; the surrender of a client's papers and property on termination is now addressed by Rule 4-1.16 and the safekeeping of client funds by Rule 5-1.1 of the Rules Regulating The Florida Bar (Model Rules 1.16 and 1.15). Subsequent rule amendments or later opinions may have changed the analysis, and whether a retaining lien exists in any given case remains a question of law. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Is it unethical to assert a retaining lien over a client's files or funds?

A: A majority said no. It concluded that it is not unethical for an attorney to exercise a retaining or attorney's lien to which the attorney is entitled by law.

Q: Did the committee decide whether the lien actually existed here?

A: No. The committee said it had no authority to pass on questions of law and could not answer whether the firm was legally entitled to assert any lien; whether a lien exists is a question of law.

Q: Did the pending grievance change the answer?

A: One member would have declined to answer because of the pending grievance, but since the grievance did not appear related to the contemplated action, a majority responded in limited fashion.

Background and rules framework

The opinion applied former Canon 14 of the Canons of Professional Ethics. The handling of a client's papers and property on termination of a representation is now addressed by Rule 4-1.16 of the Rules Regulating The Florida Bar (Model Rule 1.16), and the safekeeping of client and third-party funds by Rule 5-1.1 (Model Rule 1.15). The committee emphasized that the existence of a retaining lien is a legal question outside its authority.

Citations and references

Rules of Professional Conduct:

• Canon 14 [Canons of Professional Ethics; the lawyer's lien; see current Rules 4-1.16 and 5-1.1]

See also

• FL Bar Ethics Op. 02-4: Third-Party Claims on Settlement Funds
• FL Bar Ethics Op. 02-6: Disputed Real-Estate Escrow Deposit

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-10/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 65-10
February 22, 1965
Advisory ethics opinions are not binding.
It is not unethical for a lawyer to exercise a retaining lien, to which he is entitled by law, upon documents and funds of his client which are properly in the lawyer's custody. Whether or not he has a retaining lien is a question of law.
Canon: 14
Chairman Smith stated the opinion of the committee:
An inquiry of a member of The Florida Bar recites that a member of his firm has instituted divorce proceedings against his wife. His firm has been representing the wife's father in various legal matters including those in connection with two large condominiums. In connection with that and other representation, the father is indebted to the firm for legal fees which he has refused to pay. Further, he has instituted a grievance procedure against members of the firm which presently is pending. The firm has advised the father that, under the circumstances, it does not wish to further represent him and presented him a statement for professional services rendered to date. At the present time a sum of money is deposited in an account described as the "condominium account." This inquiry does not indicate whether this account is, in fact, a trust account of the firm, but we assume that it is. Further, the firm also holds certain documents relating to condominium matters and certain forms which are described as "condominium forms." The inquiry indicates that these forms are prepared by the office in question for use in connection with the firm's condominium enterprises. The father has now demanded that the lawyer transmit all "printed forms" to him.
In connection with the foregoing facts the lawyer inquires (1) whether he should transmit "all printed forms" to the father; (2) whether he can ethically assert a lien upon such forms and all other condominium documents held by his firm; and (3) whether his firm can ethically assert an attorney's lien over the funds held in the condominium account.
The Committee has no authority to pass on questions of law and we express no opinion whatsoever regarding whether the firm is legally entitled to take any of the action contemplated. Because there is a pending grievance proceeding, one member of the Committee believes that we should decline to answer any of the inquiries posed. It does not appear, however, that the grievance proceeding is related to the action now contemplated about which the request is made for our advice. For that reason, a majority of the Committee believes we should respond in limited fashion to the inquiry.
Subject to the foregoing observations it is the opinion of a majority of this Committee that it is not unethical for an attorney to exercise a retaining or attorney's lien to which the attorney is entitled by law. We cannot answer the inquiry more specifically.