After withdrawing, may a lawyer hold back a deposition and other file materials from a former client until the client repays the costs the lawyer advanced for them?

Plain-English summary

A lawyer represented a client in a pending civil action; the client paid nothing toward fees or disbursements; and the lawyer obtained the Superior Court's permission to withdraw. The client's new lawyer requested the entire file, which the former lawyer provided except for a deposition and certain data whose costs the former lawyer had advanced. The former lawyer asked whether he could insist on reimbursement of those costs before turning over the withheld materials.

The Commission concluded the lawyer must furnish the former client's entire file, including the deposition and other data, and that conditioning their delivery on reimbursement would be improper under M. Bar R. 3.7(c)(1). It read several rules together: Rule 3.5(a)(2) (a lawyer withdrawing must take reasonable steps to avoid foreseeable prejudice, including delivering all papers and property the client is entitled to); Rule 3.5(a)(3) (withdrawal not conditioned on payment for services to date); Rule 3.6(f)(2)(iv) (prompt delivery of property the client is entitled to receive); Rule 3.7(c)(1) (a lawyer may assert a statutory lien on the proceeds of an action, but not a lien on the client's file to secure his fee); and Rule 3.7(d) (a lawyer may advance litigation expenses).

Although the rules do not expressly address advanced disbursements as distinct from fees, the Commission construed Rule 3.7(c)(1)'s bar on a file lien for fees to also bar a file lien to secure disbursements; any other reading would prejudice the former client and conflict with Rule 3.5(a)(2). The Commission noted this was consistent with the Maine Bar Association Professional Ethics Committee's Opinion No. 39 (February 2, 1976). The result does not leave the lawyer without recourse: if the client agreed to be liable for the lawyer's reasonable expenses and disbursements, the lawyer who withdrew with leave of court may have a civil remedy to recover them.

Currency note

This opinion was issued in 1984, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer hold a former client's file hostage until advanced costs are repaid?

A: The opinion concluded no. Conditioning delivery of the file, including a deposition the lawyer paid for, on reimbursement is improper under Rule 3.7(c)(1).

Q: Does the no-lien rule cover advanced costs, or only unpaid fees?

A: The opinion construed Rule 3.7(c)(1)'s bar on a file lien for fees to also bar a file lien securing the lawyer's disbursements, since any other reading would prejudice the client.

Q: What can the lawyer do to recover the advanced costs?

A: The opinion concluded that, if the client agreed to be liable for reasonable expenses and disbursements, the withdrawing lawyer may have a civil remedy against the former client to recover them.

Q: Does withdrawing change the duty to deliver the file?

A: The opinion concluded a withdrawing lawyer must still take reasonable steps to avoid prejudice and deliver all papers and property the client is entitled to, under Rules 3.5(a)(2) and 3.6(f)(2)(iv).

Background and rules framework

The opinion interprets former Maine Bar Rules 3.7(c)(1) (no lien on a client's file), 3.5(a)(2) and 3.5(a)(3) (duties on withdrawal), 3.6(f)(2)(iv) (delivery of client property), and 3.7(d) (advancing litigation expenses). These correspond to ABA Model Rule 1.16(d) (on termination, surrendering papers and property to which the client is entitled) and Model Rule 1.15 (safekeeping client property).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16(d) (returning the file on termination); Model Rule 1.15 (safekeeping property)
• Maine Bar Rules 3.7(c)(1), 3.5(a)(2), 3.5(a)(3), 3.6(f)(2)(iv), 3.7(d)

Other opinions cited:

• Maine Bar Association Professional Ethics Committee Opinion No. 39 (February 2, 1976)

See also

• CA Op. 1992-127: Trial Counsel Aid to Appellate Counsel
• Maine Ethics Op. 66: Settling to Drop a Grievance

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=90985

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: December 5, 1984

Question

May a lawyer refuse to provide a former client a deposition and other data in the client's file unless and until the former client reimburses the lawyer for the costs of those items which were paid by the lawyer?

Opinion

This inquiry arises out of a situation in which a lawyer was representing a client in a still pending civil action; the client failed to pay any sum on account of fees or disbursements; and the lawyer has obtained permission from the Superior Court to withdraw from further representation. The client has now obtained another lawyer who has requested the entire file from his client's former lawyer, and that file has been provided, except for a deposition and certain data, the costs of which were advanced by the lawyer first representing the client. Under these circumstances, the lawyer who first represented the client inquires as to the ethical propriety of his insistence on reimbursement from his former client for costs prior to turning over materials obtained as a result of his advancing such costs.

It is the opinion of the Grievance Commission that under these circumstances the lawyer is required to furnish to the lawyer's former client the contents of the former client's file, including the deposition and other data, the costs of which were advanced by lawyer, and that it would be improper under M. Bar. R. 3.7(c)(1) for the lawyer to condition the furnishing of such material on reimbursement for such costs.

Several provisions of the Maine Bar Rules bear on this inquiry:

• M. Bar R. 3.5(a)(2) provides inter alia, that "[a] lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled. . . ."

• M. Bar R. 3.5(a)(3) provides that "[w]ithdrawal shall not be conditioned upon payment by the client for services to date; and a lawyer who withdraws from employment shall refund promptly any part of a fee paid in advance that has not been earned."

• M. Bar. R. 3.6(f)(2)(iv) provides, inter alia, that a lawyer shall "promptly deliver to the client, as requested by the client . . . properties in the possession of the lawyer which the client is entitled to receive."

• M. Bar. R. 3.7(c)(1) provides, inter alia, that while a lawyer may "[a]ssert a lien granted by law against the proceeds of such action or litigation to secure his fee or expenses," this "does not authorize an attorney to assert a lien on a client's file in order to secure payment of his fee. The assertion of such a lien (if any exists) is improper."

• M. Bar R. 3.7(d) provides, inter alia, that "a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence."

While these provisions of the Maine Bar Rules do not explicitly address the question of payment for a lawyer's disbursement, as distinguished from payment for a lawyer's services, the Commission construes M. Bar. R. 3.7 (c)(1), which prohibits a lawyer from asserting a lien on a client's file in order to secure payment of his fee, as encompassing a prohibition against the assertion of a lien on a client's file in order to secure the payment of a lawyer's disbursements. Any other construction of that Rule would be prejudicial to the former client and would thus be inconsistent with M. Bar. R. 3.5(a)(2) which expressly requires that a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client. Given the Commission's construction of Rule 3.7(c)(1), the Commission concludes that under the circumstances presented here, it would be improper under that Rule for the lawyer to condition the furnishing of the deposition and other data to his former client on reimbursement for his costs for that material. The Commission also notes that this result is consistent with an earlier opinion of the Maine Bar Association Professional Ethics Committee, Opinion No. 39, issued February 2, 1976.

The result reached here does not mean that the lawyer has no recourse. If a client has agreed to be liable for the lawyer's reasonable expenses and disbursements, a lawyer who withdraws from representation, with leave of Court, may have a civil remedy against his former client to recover such expenses and disbursements.