Can a law firm keep its investigation file after being discharged without cause if the client's new lawyer won't reimburse the firm's advanced costs?

Plain-English summary

A law firm was retained on a contingent-fee contract to bring wrongful death actions, with the clients agreeing to reimburse necessary costs. The firm made a thorough and expensive investigation. Several months later the clients discharged the firm without cause, and a newly retained lawyer asked for all the papers, documents, and investigation materials. That lawyer declined either to reimburse the firm for costs it had advanced before discharge or to guarantee payment when the case concluded. The firm, which had also filed a claim of lien in the pending actions, asked whether it could properly keep the investigation file until reimbursed.

A majority of the committee answered yes. Some members reasoned that it is not unethical to exercise a retaining lien or other attorney's lien authorized by law, assuming a valid lien could be established, citing Florida Opinions 62-71 and 65-10. Others reached the same result on the theory that the requested materials were the firm's work product and could reasonably be withheld until the cost of producing them was paid, noting that other ethical considerations (EC 5-8 and DR 5-103(B) of the Code) preclude a lawyer from advancing costs of this nature unless the client retains ultimate liability for them. Two members, observing that a claim of lien had already been filed, believed the better course was to let the court determine all questions, since the right to reimbursement was so intertwined with the lien claim that the tribunal should resolve it. The committee added that continued withholding of the work product would likely be weighed by the court in assessing the firm's compensation.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 5-8 and DR 5-103(B), the latter now superseded by Rule 4-1.8(e)), which has since been replaced. The opinion itself notes that later guidance on retaining liens appears in Florida Ethics Opinion 88-11 (Reconsidered). Treat this page as historical context, not current guidance.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: Could the firm hold the file until its advanced costs were repaid?

A: Under this opinion, a majority concluded it could, on the basis of an attorney's lien (if a valid one could be established) or as work product withheld until the cost of producing it was paid.

Q: Did it matter that the new lawyer refused to guarantee the costs?

A: Yes. The committee framed the question around the new lawyer's refusal to reimburse the costs or to guarantee payment at the conclusion of the case, and the majority found retention proper under those circumstances.

Q: Did the committee say a court should decide the dispute?

A: Two members took that view, reasoning that because a claim of lien had already been filed, the intertwined cost, work-product, and lien questions were best resolved by the court with jurisdiction over the actions.

Background and rules framework

The opinion addressed an attorney's retention of a client's file and the advancement of litigation costs in a contingent-fee matter. The former DR 5-103(B), governing advances of costs that the client remained ultimately liable to repay, is now reflected in Rule 4-1.8(e); the return of file materials on termination of a representation is governed by Rule 4-1.16. The Model Rule analogues are Rules 1.8(e) and 1.16(d).

Citations and references

Rules of Professional Conduct:

• EC 5-8; DR 5-103(B) [Code of Professional Responsibility; DR 5-103(B) superseded by Rule 4-1.8(e)]

Other opinions cited:

• Florida Opinions 62-71 and 65-10, on attorney's liens
• Florida Ethics Opinion 88-11 (Reconsidered), referenced for current advice on retaining liens

See also

• FL Bar Ethics Op. 71-62: Client Files When a Firm Splits
• FL Bar Ethics Op. 71-67: Seizing a Client's Safekept Stock
• FL Bar Ethics Op. 71-60: Privilege in an Attorney-Lien Fight

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-57/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-57-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-57
December 8, 1971
Advisory ethics opinions are not binding.
A law firm representing a plaintiff in a wrongful death action for a contingent fee may retain its own extensive investigation file when the file is discharged without cause and the new lawyer for the former client declines to reimburse the firm for its incurred costs or to guarantee payment at the conclusion of the case.
Note: See Florida Ethics Opinion 88-11 (Rec.) for advice on retaining liens.
CPR: EC 5-8; DR 5-103(B) [Note: superseded by 4-1.8(e)]
Opinions: 62-71, 65-10
Chairman Clarkson stated the opinion of the committee:
A law firm was retained by the appropriate parties to bring actions for wrongful death. Terms of employment were set forth in a contingent fee contract containing the customary clients' agreement to reimburse the law firm for necessary costs. Thereafter, the firm made a thorough investigation of the facts of the case at substantial expense.
Several months after employing the firm, the parties discharged it without cause and advised that another lawyer would call to obtain the file. The newly retained lawyer subsequently requested that all papers, documents and other items of investigation obtained or developed by the firm be delivered to him for his use in going forward with the case. However, the new lawyer has, upon request, declined to reimburse the firm for its incurred costs or to guarantee payment of them at the time the case is concluded. Under these circumstances the firm is reluctant to relinquish possession of the materials in its possession. As a separate but related matter, the firm has filed a claim of lien in the pending court actions based upon the contingent fee contract.
A member of the firm inquires whether he may properly retain the investigation file until reimbursed for the costs advanced prior to discharge.
A majority of the Committee answers this question in the affirmative. Some do so on the basis that it is not unethical for an attorney to exercise a retaining lien or other attorney's lien authorized by law, assuming such a valid lien can be established in this instance. See Florida Opinion 62-71 and 65-10. Others reach the same result under the theory that the requested materials are work product of the firm and may reasonably be withheld until the cost of producing them has been paid by or in behalf of the clients. Indeed, other ethical considerations preclude a lawyer from advancing costs of this nature unless his client retains the ultimate liability for them. EC 5-8, DR 5-103(B), CPR.
Two members of the Committee, observing that a claim of lien for compensation has been filed in the court having jurisdiction, believe the more appropriate procedure would be to let the court determine all questions, including that raised by this inquiry. They suggest that the right to reimbursement for costs, involving as it may issues of work product and retaining lien, is so intertwined with the claim submitted to the court that all such matters should be determined by that tribunal.
We note in passing that the continued withholding of the firm's work product would likely be weighed by the court in assessing the amount of compensation to be awarded the firm pursuant to its claim of lien.