Can a lawyer withhold a former criminal client's file under a retaining lien until the client pays a copying fee?

Plain-English summary

An attorney had represented a client in a criminal matter that ended in conviction; the client then filed a post-conviction relief (PCR) action alleging ineffective assistance. The client had never paid the full retainer and now asked for a copy of his file, which the attorney declined to provide until the client paid a $250 copying fee (refundable to the extent unused). The committee was asked whether the attorney could withhold the file under a retaining lien until the copying fee was paid.

The committee concluded the attorney may not withhold the file on these facts. It set out the framework: Rule 1.16(d) requires a lawyer, on termination, to surrender papers and property to which the client is entitled, though the lawyer may retain papers to the extent permitted by other law; Rule 1.15(b) requires prompt delivery of property the client is entitled to receive; and Rule 1.8 permits acquiring a lien granted by law to secure fees or expenses. The committee acknowledged that a retaining lien exists at common law and was confirmed by the South Carolina Supreme Court. But it stressed that the mere existence of a legal right does not entitle a lawyer to assert it where ethical considerations require otherwise; the lawyer must weigh his interest against the client's and consider whether asserting the lien would prejudice important rights and whether less drastic means exist. Citing the court, it explained that where the lien would prejudice the client's ability to defend a criminal matter or assert an important personal liberty, the lawyer should ordinarily forego it, and that a client's financial inability to pay (nonpayment that is not deliberate and so not fraud or gross imposition) should also lead the lawyer to forego the lien. Because the former client needed the file to assert his statutory right to seek post-conviction relief, the attorney could not withhold it.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the attorney hold the file until the copying fee was paid?

A: The committee concluded no, on these facts. Withholding would prejudice the client's ability to pursue post-conviction relief, so the lawyer should forego the retaining lien.

Q: Does a retaining lien exist at all in South Carolina?

A: Yes. The committee recognized a common-law retaining lien, confirmed by the Supreme Court, but said its mere existence does not justify asserting it where ethics require otherwise.

Q: When should a lawyer forego the retaining lien?

A: When withholding would prejudice the client's ability to defend a criminal matter or assert an important personal liberty, and when nonpayment reflects financial inability rather than deliberate refusal.

Background and rules framework

The opinion applied Rule 1.16(d) (protecting a client's interests on termination; surrendering papers), Rule 1.15(b) (prompt delivery of property), and Rule 1.8 (acquiring a lien to secure fees or expenses), against the common-law retaining lien recognized by the South Carolina Supreme Court. The South Carolina rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.16 / Model Rule 1.16: declining or terminating representation; surrendering papers (Rule 1.16(d)).
• South Carolina RPC 1.15 / Model Rule 1.15: safekeeping property; prompt delivery (Rule 1.15(b)).
• South Carolina RPC 1.8 / Model Rule 1.8: acquiring a lien to secure fees or expenses.

Cases:

• In re An Anonymous Member of the South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803 (1985), recognizing a retaining lien in appropriate circumstances.

See also

• SC Bar Ethics Op. 94-35: Withdrawing From an Impaired Client
• SC Bar Ethics Op. 94-20: Honoring a Doctor's Lien the Lawyer Never Signed

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-30/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-30

Attorney represented client in a criminal action which resulted in the client's conviction. Subsequently, the client filed a Post Conviction Relief action against attorney alleging ineffective assistance of counsel. Client has never paid the full retainer fee to attorney for his past services and now requests the attorney provide client with a copy of the client's file. Attorney has declined to return the file until client remits a $250.00 copying fee to cover the costs which will be incurred by attorney. If the full copying fee is not used the client will receive a reimbursement.

Question:
Is it ethical for an attorney whose former client has requested to receive a copy of his file, to withhold the file and exercise a retaining lien until the former criminal client remits a copying fee to the attorney?

Summary:
An attorney may not withhold the file of a former client and request payment of a copying expense under the facts presented.

Opinion:
Rule 1.16 (d) of the SCACR provides "upon termination of representation, a lawyer shall take steps to the extent reasonable and practical to protect a client's interests...

surrendering paper and property to which the client is entitled... the lawyer may retain papers relating to the client to the extent permitted by other law." Rule 1.15(b) states, "except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive...". Pursuant to Rule 1.8," an attorney may acquire a lien granted by law to secure the lawyers fee or expenses." At common law, an attorney had a right to exercise a retaining lien against a client's file. 7(a) C.J.S. Attorney and Client Sec. 357(a) (1980); 7 AM. JUR. 2d Attorneys at Law Sec. 1315 (1980). Our Supreme Court confirmed the existence of a retaining lien in appropriate circumstances in the case of In Re: An Anonymous Member of the South Carolina Bar 287 S.C. 250, 335 S.E. 2d 803 (1985).

Whether an attorney may have a valid retaining lien, the lawyer must consider whether the assertion of the retaining lien is proper and ethical in each individual case. The mere existence of a legal right does not entitle a lawyer to stand upon that right if ethical considerations would require that he forego it. Each lawyer must evaluate his or her interests against the interests of the client and/or of others who would or could be substantially or adversely affected by the assertion of a retaining lien. Of major consideration to the attorney is whether the exercise of the retaining lien would prejudice important rights or interests of the client or of other parties. Additionally the lawyer should consider whether their are less stringent means by which the matter could be resolved.

Our Court has stated that if the exercise of the retaining lien would prejudice a client's ability to defend against criminal charges or to assert or defend an important personal liberty, the lawyer should ordinarily forego the lien. The Court further stated that the financial inability of a client to pay the amount owing to the attorney should also cause the attorney to forego the exercise of the lien because of failure to pay the fee is not deliberate and thus does not constitute fraud or gross imposition by the client. In the question presented, the former client is in need of his file in order to assert a statutory right, to seek post conviction relief.