Can a law firm that won a judgment against a former client for unpaid fees seize, by writ of execution, a stock certificate the client had left with the firm for safekeeping?

Plain-English summary

A Florida law firm obtained a judgment against a former client for unpaid fees. The firm held a stock certificate the client had left with it for safekeeping, and a member asked whether the firm could ethically have the sheriff seize the certificate under a writ of execution and then bid for it at the sheriff's sale.

The committee was unable to approve the procedure. It reasoned that possession of the stock certificate came about through the attorney-client relationship and was subject to Section 11.02(4) of the Integration Rule. Citing Florida Opinion 68-21, the committee repeated that whether a lawyer has a valid lien against a client's property coming into his hands is a question of law to be determined in appropriate proceedings, and that absent assertion of such a claim the lawyer has a duty under DR 9-102(B) of the Code of Professional Responsibility to promptly deliver to the client, on request, any property the client is entitled to receive. The committee adhered to Opinion 68-21 and advised that the proper procedure was to file an action seeking a retaining lien and let the court pass on the parties' legal rights.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility and the former Integration Rule, which have since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.15 and 5-1.1 before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm just levy on the client's safekept property to collect its fees?

A: Under this opinion, no. The committee declined to approve seizing the stock certificate by writ of execution, because the firm held the certificate through the attorney-client relationship.

Q: What did the committee say about a fee lien on the property?

A: The opinion treated whether the firm had a valid lien as a question of law for the courts, not an ethics question the committee could resolve.

Q: What was the proper way to pursue the fees against that property?

A: The committee advised filing an action seeking a retaining lien and letting the court pass on the legal rights of the parties.

Background and rules framework

The opinion addressed a lawyer's duty toward client property held for safekeeping when the lawyer also claims unpaid fees, and treated the existence of any lien as a legal question for the courts rather than an ethics determination. In current Florida practice the safekeeping of client property is governed by Rule 5-1.1 and the broader safekeeping duty by Rule 4-1.15; the Model Rule analogue is Rule 1.15.

Citations and references

Rules of Professional Conduct:

• CPR DR 9-102(B) (prompt delivery of client property)
• Integration Rule, Article XI, Section 11.02(4)/(f)

Other opinions cited:

• Florida Opinion 68-21

See also

• FL Bar Ethics Op. 72-43: Assigning a Client's Fee Account
• FL Bar Ethics Op. 72-37: Trust Funds and FDIC Coverage
• FL Bar Ethics Op. 16-1: Forgiving Advanced Costs

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-67/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-67-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-67
February 22, 1972
Advisory ethics opinions are not binding.
It is improper for a law firm, which has obtained a judgment against a former client for unpaid fees, to acquire through writ of execution a stock certificate left with the firm by client for safekeeping. Whether a law firm has a valid lien against a client's property coming into its possession is a matter of law for the courts.
CPR: DR 9-102(B)
Opinion: 68-21
Integration Rule: Art. XI, 11.02(f)
Chairman Clarkson stated the opinion of the committee:
A Florida law firm obtained a judgment against a former client for unpaid fees. The firm has in its possession a stock certificate which the client left there for safekeeping. A member of the firm asks whether he may ethically cause the sheriff to seize the certificate under a writ of execution and then bid for it at the sheriff's sale.
We are unable to approve the suggested procedure. Possession of the stock certificate came about through the attorney-client relationship and is subject to the provisions of Section 11.02(4) of the Integration Rule. The Committee has previously suggested that the question whether a lawyer has a valid lien against a client's property coming into his hands is a question of law to be determined in appropriate proceedings. Florida Opinion 68-21. Absent the assertion of his claim in such a manner the lawyer is under a duty to promptly deliver to his client upon request any property in his possession which the client is entitled to receive. DR 9-102(B), CPR.
We adhere to opinion 68-21 and advise that the proper procedure would be to file an action seeking a retaining lien and let the court pass upon the legal rights of the parties.