Can a discharged lawyer keep the client's case file until advanced costs are paid?

Plain-English summary

A firm that had represented a personal-injury plaintiff for more than two years was discharged when the client changed attorneys. The firm had advanced about $2,000 in costs, and the new attorney requested the case file. The firm asked whether it could retain the file until the outstanding costs were paid.

The committee observed that in Florida a case file is considered the property of the attorney rather than the client, and that ordinarily an attorney should make file information available to the client, at the client's expense, where it would serve a useful purpose. In appropriate situations, however, an attorney may refuse to provide copies and instead assert an attorney's lien, including where a client refuses to reimburse a discharged attorney for incurred costs or to guarantee payment at the conclusion of the case. Whether the lien is ethically permissible is distinct from its validity and extent, which the committee said is a question of law for the courts.

The committee distinguished the two Florida liens: a charging lien (for fees or costs in a specific matter where suit is filed, requiring a contract, an understanding for payment from the recovery, avoidance or dispute over fees, and timely notice) and a retaining lien (assertable on file materials or client property in the lawyer's possession for amounts owed for all legal work, whether or not suit is filed). It noted that the right to assert a lien is limited by the lawyer's ethical obligation to avoid foreseeable prejudice to the client's interests, which depends on the specific facts, and that under Rosenberg v. Levin a discharged attorney's fee is limited to the reasonable value of services, capped by the contract fee (and in contingency cases arising only on success). The committee concluded it would not be improper for the firm to assert a retaining lien on the file until the outstanding costs were paid or guaranteed, or alternatively to file a charging lien.

Currency note

This opinion was issued in 1988, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The opinion relies on Opinion 71-37, which it notes has since been withdrawn.

Common questions

Q: Can a discharged lawyer hold the client's file until advanced costs are paid?

A: The opinion concluded that a discharged firm may assert a retaining lien on the case file until advanced costs are reimbursed or guaranteed, subject to the duty to avoid foreseeable prejudice to the client.

Q: Is the file the client's property or the lawyer's?

A: The opinion observed that in Florida the case file is considered the property of the attorney rather than the client, though ordinarily the lawyer should make useful information available to the client at the client's expense.

Q: What is the difference between a charging lien and a retaining lien?

A: The opinion explained that a charging lien attaches to the recovery in a specific matter where suit is filed and requires a contract, an understanding for payment from the recovery, a dispute or avoidance of fees, and timely notice; a retaining lien may be asserted on file materials or client property for amounts owed for all legal work, whether or not suit is filed.

Q: Does asserting a lien decide the lawyer's right to it?

A: No. The opinion concluded that whether asserting a lien is ethically permissible is separate from its validity and extent, which is a question of law to be decided by the courts.

Background and rules framework

The opinion addresses the ethics of asserting attorney's liens on a discharged client's file, framed by the lawyer's continuing duty under Rule 4-1.16(d) (Model Rule 1.16) to avoid foreseeable prejudice to the client on termination. The substantive lien law (charging versus retaining liens, and the quantum-meruit limit on a discharged lawyer's fee) is drawn from Florida case law, which the committee treats as questions of law for the courts.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-1.16(d) / Model Rule 1.16 (avoiding prejudice on termination)

Cases:

• Daniel Mones, P.A. v. Smith, 486 So. 2d 559 (Fla. 1986), charging and retaining liens
• Dowda and Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984), case file as attorney's property
• Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982), discharged attorney's quantum-meruit fee

Other opinions cited:

• Fla. Ethics Opinions 71-37 (withdrawn), 71-57

See also

• FL Bar Ethics Op. 88-1: Acting Against a Client Over Unpaid Fees
• FL Bar Ethics Op. 16-1: Forgiving Advanced Costs
• FL Bar Ethics Op. 96-1: Absorbing Client Litigation Costs

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-88-11/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-88-11-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 88-11
August 1, 1988
Advisory ethics opinions are not binding.

A law firm that is discharged by a client before the client's litigation is concluded may assert a retaining lien against the case file until costs advanced on behalf of the client are either reimbursed or guaranteed.

Opinions: 71-37, 71-57
Cases: Daniel Mones, P.A. v. Smith, 486 So.2d 559 (Fla. 1986); Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984); Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982)

The inquiring attorney's firm represented a client, the plaintiff in a personal injury matter, for more than two years. The attorney states that his firm has been ready for trial for the past six months, but has twice moved for a continuance at the client's direction.

The client recently changed attorneys. Her new attorney previously handled a criminal matter for the client. The new attorney contacted the inquiring attorney's firm and requested the case file. The inquirer's firm had advanced costs of approximately $2,000 on the case.

The inquirer would like to retain the case file until the outstanding costs are paid. He asks whether this is ethically permitted.

Many attorneys are unaware that in Florida a case file is considered to be the property of the attorney rather than the client. Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn]. Under normal circumstances, an attorney should make a available to the client, at the client's expense, copies of information in the file where such information would serve a useful purpose to the client. Opinion 71-37 [since withdrawn].

In appropriate situations, however, an attorney is entitled to refuse to provide copies of material in his file and instead may assert an attorney's lien. Such situations include a client's refusal to reimburse a discharged attorney for his incurred costs or to guarantee payment of those costs at the conclusion of the case. Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for an attorney to assert a lien with respect to materials in a case file, the validity and extent of the lien is a question of law to be decided by the courts.

Florida common law recognizes two types of attorney's liens: the charging lien and the retaining lien. The charging lien may be asserted when a client owes the attorney for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the attorney must show: (1) a contract between attorney and client; (2) an understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla. 1986). The attorney should give timely notice of the asserted charging lien by either filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is preferred. Unlike a charging lien, a retaining lien may be asserted with respect to amounts owed by a client for all legal work done on his behalf regardless of whether the materials upon which the retaining lien is asserted are related to the matter in which the outstanding charges were incurred. A retaining lien may be asserted on file materials as well as client funds or property in the attorney's possession, and may be asserted whether or not a suit has been filed. Mones, 486 So.2d at 561.

An attorney's right to assert a lien may be limited, however, by his ethical obligation to avoid foreseeable prejudice to the client's interests. What papers or documents must be furnished to a client in a particular case in order to avoid prejudicing his interest therein will necessarily depend on the specific facts and circumstances involved.

A related issue often arising when an attorney is discharged is the amount of fee to which he is entitled. In Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982), the Florida Supreme Court held that an attorney employed under a valid contract who is discharged without cause before conclusion of the matter can recover only the reasonable value of his services, limited by the maximum contract fee. In contingency fee cases, this quantum meruit action arises only upon successful occurrence of the contingency.

In summary, it would not be ethically improper for the inquiring attorney's firm to assert a retaining lien on the case file until the outstanding costs are paid or guaranteed. Alternatively, a charging lien can be filed.