In Kentucky, may a lawyer hold a client's file as security in a fee dispute?

Plain-English summary

The Committee addressed whether a lawyer may hold a client's file because of a fee dispute, and answered with a qualified no. Under KRPC 1.16(d), on termination a lawyer must take reasonably practicable steps to protect the client's interests, including surrendering papers and property to which the client is entitled. Comment 10 to KRPC 1.16(d) allows a lawyer to retain papers as security for a fee only to the extent permitted by law, and whether a lien is permitted is a question of law. The Committee observed that while Kentucky statute authorizes a charging lien on funds or property recovered in a lawsuit, it was aware of no Kentucky statute or case providing a retaining lien.

Drawing on its earlier opinions, the Committee explained the scope of what must be returned. KBA E-235 (relying on ABA Formal Op. 1376) listed file materials that must be returned to a client, though that opinion assumed the fee had been paid. KBA E-280 allowed a discharged lawyer to charge the client the actual, proportionate costs of duplicating the file, while permitting the lawyer to withhold work product.

Taken together with KRPC 1.16(d), the Committee concluded the lawyer must turn over the file to the client or the client's new attorney except for work product, surrendering originals needed for trial preparation or as evidence in original form. The lawyer has no statutory lien for duplication costs but may charge their reasonable cost; under no circumstances may the lawyer hold the file hostage, and the lawyer should surrender the file even if reimbursement for costs (such as filing fees, service fees, and the cost of obtaining medical records) is not forthcoming.

Currency note

This opinion was issued in 1997 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Comment 10 to Rule 1.16 referenced here was amended. The Kentucky Bar Association notes that lawyers should consult the current version of the rules before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer keep a client's file until a disputed fee was paid?

A: Per the opinion, no in practical effect. Because Kentucky recognizes no retaining lien, KRPC 1.16(d) required the lawyer to surrender the file except for work product, even if the fee was unpaid.

Q: Could the lawyer withhold work product?

A: The opinion concluded yes. Following KBA E-280, the lawyer could withhold materials within the lawyer's work product, but had to turn over the rest of the file.

Q: Could the lawyer charge for copying the file?

A: Per the opinion, yes. The lawyer could charge the reasonable, proportionate cost of duplication, but had no statutory lien for it and had to surrender the file even if that cost went unpaid.

Q: What about originals needed for trial?

A: The opinion concluded documents or evidence whose originals may be needed for trial preparation or as evidence must be surrendered in original form.

Background and rules framework

The opinion interprets KRPC 1.16(d) (duties on termination of representation, including surrender of the client's papers and property; the Model Rule 1.16 counterpart) and its Comment 10 (retention of papers as security only to the extent permitted by law). It distinguishes Kentucky's recognized charging lien from a retaining lien, which the Committee found unsupported by Kentucky authority.

Citations and references

Rules of Professional Conduct:

• MR 1.16 / KRPC 1.16(d) (duties on termination; surrender of the client's file; Comment 10 on retention)

Other opinions cited:

• KBA E-235 (1980): materials that must be returned to the client (per ABA Formal Op. 1376)
• KBA E-280 (1984): charging the client the actual cost of duplicating the file; withholding work product

See also

• KBA Ethics Op. E-417: Sharing Office Space With Nonlawyers
• KBA Ethics Op. E-411: Contingent Fee in an Appeal of a Dissolution Decree

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-395.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-395
Issued: March 1997

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky
Supreme Court has adopted various amendments, and made substantial revisions in
2009. For example, this opinion refers to Comment 10 to Rule 1.16, which was
amended. Lawyers should consult the current version of the rules and comments, SCR
3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer hold a client’s file because of a fee dispute?

Answer:

Qualified No.

References:

KRPC 1.16(d); KBA E-280 (1984) and E-235 (1980); ABA Annotated Model
Rules of Professional Conduct (3d Ed. 1995) pp. 257-58.
OPINION

KRPC 1.16(d) provides that “upon termination of representation” a lawyer shall “take
steps to the extent reasonably practicable to protect a client’s singular interest ... surrendering
papers and property to which the client is entitled....” Comment (10) to KRPC 1.16(d) states that
“[t]he lawyer may retain papers as security for a fee only to the extent permitted by law.”
Whether a lien is permitted by law is a question of law. In Kentucky, a charging lien on the
funds or property recovered in a lawsuit is authorized by statute law, but the Committee is not
aware of any statute or case that provides a Kentucky lawyer with a retaining lien.
A number of newer state bar opinions state that even if the assertion of a retaining lien is
legal, there may be ethical limits on its exercise. See ABA Annotated Model Rules, pp. 257-58.
See also Fortune, Underwood & Imwinkelried, Modern Litigation and Professional
Responsibility Handbook (1996).
In KBA E-235 the Committee answered with a qualified “yes” to the question, [when] a
lawyer has been discharged by a client may he refuse to deliver certain items in the file to the
client?” The Committee cited with approval ABA Formal Opinion 1376, which set forth specific
materials that had to be returned to the client in a trademark case:
A. Notes and memos to the file prepared by the attorney
containing recitals of facts, conclusions, recommendations;
B. Correspondence between attorney and client;
C. Correspondence between attorney and third party;
D. Material furnished by the client ... ;
E.

Application, receipts, affidavits filed, in respect to use, etc. ...;

F.

Searches made at the expense of the client;

G. Copies of the pleadings and the like filed in an
administrative or court proceeding; and
H. Legal research embodied in the memos or briefs.

However, the above opinion was predicated on the assumption that the lawyer’s fee had
been paid.
KBA E-280 extended the above opinion by answering a “qualified yes” to the questions,
“[may] a lawyer charge a fee for duplication of the client’s file after the lawyer has been
discharged?” The Committee determined “that a discharged lawyer may charge his former client
for the actual costs involved in the duplication of a file, provided the lawyer does not charge a
fee disproportionate to the actual costs of such duplication.” The Committee added, however,
that the lawyer may withhold materials within the lawyer’s “work product privilege” from the
client in the event of discharge.
Together these opinions, along with KRPC 1.16(d), make it clear that the lawyer must
turn over the file to the client or the client’s attorney except for “work product.” Documents or
other relevant evidence, the original of which may be required for trial preparation or as evidence
for trial, must be surrendered in the original form.
The lawyer does not have a statutory lien for the costs of duplication, but the lawyer is
permitted to charge for the reasonable costs of duplication. Under no circumstances may the
lawyer hold hostage the file. While the lawyer is entitled to reimbursement for costs incurred
“including filing fees, service fees and costs for obtaining medical records,” the lawyer should
“surrender” the file even if reimbursement is not forthcoming.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.