May a lawyer hold a client's documents or trust funds under a retaining lien for unpaid fees?

Plain-English summary

A Florida attorney was owed a substantial amount in undisputed fees and costs, and held in his trust account for the client an amount slightly less than that undisputed obligation. He had also billed disputed additional fees, which he suggested be submitted to the local bar association's arbitration committee. He asked whether he had any obligation to return the trust funds to the client or to transmit the money to settle one of the client's cases with a third party.

The committee, following Opinions 62-71 and 65-10, said there is nothing unethical about a lawyer exercising a retaining lien on documents and funds of a client properly in his custody, to the extent he is entitled to such a lien by law. It emphasized, as stated in the latter opinion, that whether a valid retaining lien exists is a question of law on which the committee has no authority to pass. It noted that reservation was particularly pertinent here, because the status of the trust-account funds and the purpose for which they were deposited (for example, whether deposited specifically to settle a pending lawsuit) was not clear, and it cited Opinions 68-21 and 68-37.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 11 and 14 and prior committee opinions. The safekeeping of client property and trust funds is now addressed by Rule 4-1.15, and a lawyer's retention of papers on termination by Rule 4-1.16. Treat this page as historical context, not current guidance.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: Can a lawyer hold client funds or papers until fees are paid?

A: Under this opinion, a lawyer may exercise a retaining lien on documents and funds properly in his custody to the extent the law allows it.

Q: Did the committee decide whether the lien was valid here?

A: No. It said the validity of a retaining lien is a question of law it has no authority to decide, and noted the status and purpose of the trust funds were unclear.

Background and rules framework

The opinion applied the former Canons 11 and 14 on handling client property and identified the retaining-lien question as one of law. The safekeeping of client property and trust funds is now addressed by Rule 4-1.15, and the retention of a client's papers on termination by Rule 4-1.16. The Model Rule analogues are Rule 1.15 and Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Canons 11 and 14 [Code of Professional Responsibility; client property now in Rule 4-1.15]

Other opinions cited:

• Florida Opinions 62-71, 65-10, 68-21, 68-37: retaining liens on client documents and funds

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-17/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-17-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-17
June 22, 1970
Advisory ethics opinions are not binding.
A lawyer may exercise a valid retaining lien upon documents and funds of his client properly in his custody. The validity of such a lien is a question of law.
Canons: 11 and 14
Opinions: 62-71, 65-10, 68-21, 68-37
Vice Chairman Gregory stated the opinion of the committee:
A Florida attorney is owed a substantial amount for undisputed fees and costs incurred by and in behalf of a client for whom the lawyer holds "in my trust account" an amount slightly less than the undisputed amount of obligation. The lawyer has also billed the client for substantial additional fees which are disputed and which the lawyer has suggested he and his client submit for determination by the Arbitration Committee of the local Bar Association. We are requested to advise whether there is "any obligation to return" the funds held in the trust account to the client or "any obligation to transmit said money to settle one of *** client's cases with a third party."
This Committee has held in 62-71 and 65-10 that there is nothing unethical about a lawyer exercising a retaining lien upon documents and funds of his client properly in his custody and to the extent he is entitled to such a lien by law; as was stated in the latter opinion, the question of whether or not a valid retaining lien exists is a question of law and this Committee has no authority to pass on or advise with respect to questions of law. The reservation concerning questions of law is particularly pertinent here where by the terms of the inquiry, the status of the funds held in the trust account, and the purpose or purposes for which they were deposited (i.e., whether deposited specifically for the settlement of a pending law suit) is not clear. See also Opinions 68-21 and 68-37.