Can a Tennessee lawyer withhold a client's file or documents to force payment of a disputed fee?

Plain-English summary

The opinion addressed an attorney's retention of a client's documents as a means of enforcing resolution of a fee dispute. It started from Tennessee common law recognizing an attorney's lien on a client's documents to secure payment of legal fees, citing McDonald, Shea & Co. v. Railroad and Brown & Reid v. Bagley, and from ABA Formal Ethics Opinion 209's observation that fee amount and payment disputes are ordinarily contract questions for the courts and do not usually raise an ethical question. The opinion then identified the mandatory Disciplinary Rules bearing on the practice: DR 2-106(A) and (B) (bar on illegal or clearly excessive fees), DR 2-110(A)(2) (duty on withdrawal to avoid foreseeable prejudice to the client and deliver all papers and property), DR 7-101(A)(3) (bar on prejudicing or damaging a client), and DR 9-102(B)(4) (duty to promptly deliver client property the client is entitled to receive), alongside aspirational Ethical Considerations on fee disputes (EC 2-16, EC 2-23, EC 2-25) and on a lawyer's undivided loyalty (EC 2-32, EC 5-1, EC 5-2).

The opinion concluded that where legal and ethical questions about a fee dispute overlap, the ethical obligations control, so it is unethical for an attorney to assert a lien for fees that are illegal or clearly excessive. Before asserting a lien on a client's documents, the opinion held the attorney should pursue other reasonable means of collection first, including suggesting the client place disputed funds in escrow with a third party pending proper adjudication; the lien should be asserted only as a last resort, necessary to prevent fraud or gross imposition by the client. The opinion distinguished Crawford v. Logan, in which the Tennessee Supreme Court addressed an attorney who withheld part of a file the client did not know existed rather than asserting a lien, and found this opinion did not conflict with that holding.

Currency note

This opinion was issued in 1986, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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 a Tennessee lawyer keep a client's file until an unpaid fee was paid?

A: Only as a last resort. The opinion held a lawyer could assert a common-law lien on client documents, but only after seeking other reasonable collection means and only when necessary to prevent fraud or gross imposition by the client.

Q: Could a lawyer assert a lien to collect an excessive fee?

A: No. The opinion held it is unethical to assert a lien for fees that are illegal or clearly excessive under DR 2-106(A) and (B).

Q: What alternative did the opinion suggest before asserting a lien?

A: Suggesting that the client place the disputed funds in escrow with a third party pending proper adjudication of the fee dispute.

Background and rules framework

The opinion applied the mandatory Disciplinary Rules governing withdrawal and client property (DR 2-110(A)(2), DR 7-101(A)(3), DR 9-102(B)(4)) and the fee-reasonableness rule (DR 2-106), against the backdrop of Tennessee common law recognizing an attorney's lien. The modern analogs are Model Rule 1.16 / Tennessee RPC 1.16 (duties on termination of representation, including returning client property) and Model Rule 1.5 / Tennessee RPC 1.5 (fees).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-106(A), (B) (bar on illegal or clearly excessive fees). Modern analog: Model Rule 1.5 / Tennessee RPC 1.5
• DR 2-110(A)(2) (duty on withdrawal to avoid foreseeable prejudice and deliver papers and property). Modern analog: Model Rule 1.16 / Tennessee RPC 1.16
• DR 7-101(A)(3) (bar on prejudicing or damaging a client)
• DR 9-102(B)(4) (duty to promptly deliver client property)

Cases:

• McDonald, Shea & Co. v. Railroad, 93 Tenn. 281 (1893), recognizing an attorney's lien on client documents
• Brown & Reid v. Bagley, 3 Tenn. Ch. 621 (1878)
• Crawford v. Logan, 656 S.W.2d 360 (Tenn. 1983), distinguished as not conflicting with this opinion

Other opinions cited:

• ABA Formal Ethics Opinion 209 (fee disputes are ordinarily contract questions for the courts)

See also

• AL Ethics Op. 1992-05: Absent a Valid Attorney's Lien, the Client's File Belongs to the Client
• AL Ethics Op. 1986-02: Attorney Must Provide File Copies Subject to the Lien
• NY State Bar Op. 567: Retaining Lien and Fee Dispute Litigation

Source

• Landing page: https://www.tbpr.org/ethic_opinions/86-F-106

Original opinion text

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

86-F-106 - Retention of Client Documents

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 86-F-106

Inquiry is made concerning the attorney's retention of clients' documents in an effort to enforce resolution of a fee dispute between the attorney and client.

The Common law recognizes an attorney's lien on client's documents to secure payment of legal fees. See McDonald, Shea & Co. v. Railroad, 93 Tenn. 281 (1893) and Brown & Reid v. Bagley, 3 Tenn. Ch., 621 (1878).

American Bar Association Formal Ethics Opinion 209 states,

Any question as to the amount of an attorney's fee or method of its payment is a matter of contract, expressed or implied to be construed. Any controversy concerning such a matter is a matter of law to be determined by the Courts. Ordinarily no ethical question is involved in such a controversy.

This opinion will attempt to address some of the ethical obligations and concerns which may occasionally arise from such matters.

Disciplinary Rules 2-106(A) and (B) of the Code of Professional Responsibility prohibit illegal or clearly excessive fees for legal services.

Disciplinary Rule 2-110(A)(2) of the Code requires a lawyer, upon withdrawal from representation, to take reasonable steps to avoid foreseeable prejudice to the rights of his client and to deliver all papers and property.

Disciplinary Rule 7-101(A)(3) states that a lawyer shall not prejudice or damage his client.

Disciplinary Rule 9-102(B)(4) requires the lawyer to promptly deliver to the client the property in the lawyer's possession which the client is entitled to receive.

Pursuant to the Preliminary Statement of the Code of Professional Responsibility the above cited Disciplinary Rules are mandatory and,

state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.

Some of the applicable Ethical Considerations of the Code of Professional Responsibility which provide aspirational objectives and constitute a body of principles for guidance in this matter are as follows:

EC 2-16 The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them. Nevertheless, persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities to achieve that objective.

EC 2-23 A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject. He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.

EC 2-25 The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, ---

EC 2-32 ---Even when he justifiably withdraws, a lawyer should protect the welfare of this client by ---delivering to the client all papers and property to which the client is entitled. ---and otherwise endeavoring to minimize the possibility of harm.

EC 5-1 The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.

EC 5-2 A lawyer should not accept proffered employment if his personal interests or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client. After accepting employment, a lawyer carefully should refrain from acquiring a property right or assuming a position that would tend to make his judgment less protective of the interests of his client.

It therefore appears that there may be instances where there are mixed questions of legal and ethical concern. In such instances the ethical obligations of the attorney should prevail. For example, it is unethical for an attorney to assert a lien for legal services which is illegal or clearly excessive.

Prior to asserting a lien on the client's property for payment of legal services the attorney should seek all other reasonable means of collection, including suggesting that the client place funds for disputed claims in escrow with a third party, pending the proper adjudication of the matter. The attorney's lien should only be asserted as a last resort when necessary to prevent fraud or gross imposition by the client.

The case of Crawford v. Logan, 656 S.W.2d 360 (Tenn. 1983), wherein the attorney did not assert a lien but instead withheld a portion of the file which the client did not know existed has been fully considered and this opinion does not conflict with the holding of the Supreme Court therein.

This 26th day of September, 1986.

ETHICS COMMITTEE:

Jerry C. Colley

William R. Willis

Cecil D. Branstetter

APPROVED AND ADOPTED BY THE BOARD