When a client owes undisputed fees, can the lawyer condition giving the client a copy of the entire file on payment of those fees?

Plain-English summary

A lawyer represented a client for about two and a half years. The client was significantly in arrears on fees; the outstanding balance was not in dispute, but the client was either unwilling or unable to pay. The client then requested a complete copy of his rather extensive file. The lawyer asked whether he could condition compliance with that request on payment of his fee. This opinion is a reconsideration dated September 27, 1989.

The committee read DR 2-108(D), which on termination required the lawyer to take reasonable steps to protect the client's interests, deliver all papers and property to which the client is entitled, refund unearned advance fees, and which allowed the lawyer to retain papers "to the extent permitted by applicable law." Reading "applicable law" as the law of an attorney's lien for fees owed (citing LE Op. 1171), the committee said a retaining (common-law possessory) lien lets an attorney hold a client's documents or property, except trust funds, until the fee is paid. So where the fee is undisputed and the client can meet the obligation, the lawyer may assert a retaining lien as security, unless withholding the files would prejudice or damage the client. It cited ABA Informal Opinion 1461 (adopted November 11, 1989) on circumstances in which asserting a fee lien by retaining the file would prejudice the client.

The committee stressed that DR 2-108(D)'s general provision still required reasonable steps for the continued protection of the client's interests, so the attorney had to consider whether retaining the files would materially interfere with the client's subsequent representation and thereby prejudice the client. Even where a lien was appropriately asserted, the lawyer might need to make the file available for the client's review if total withholding would prejudice the client. The committee added that any copying charges imposed on the client's account for making the file available are likewise subject to the available legal remedies for collection, which may not be asserted except under the appropriate circumstances.

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.16(e) governs a lawyer's duty to provide files to a former client. 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 the file until undisputed fees are paid?

A: Under this 1989 opinion, where the fee is undisputed and the client can pay, the lawyer may assert a retaining lien on the file as security, unless withholding would prejudice or damage the client.

Q: What is the limit on the retaining lien?

A: The committee said the lawyer must still take reasonable steps to protect the client's interests, so a lien cannot be used where retention would materially interfere with the client's later representation; even with a valid lien, the lawyer may need to make the file available for review.

Q: Can the lawyer charge for copying the file?

A: The committee said copying charges imposed on the client's account are subject to the available legal remedies for collection, which may not be asserted except under appropriate circumstances.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (delivering papers and property on termination; retention to the extent permitted by applicable law), reading "applicable law" as the attorney's-lien law. The duty to provide a former client's file is now within Virginia Rule 1.16(e), the analog of ABA Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) (delivering the client's papers and property on termination; retaining lien)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

Other opinions cited:

• Virginia LE Op. 1171: "applicable law" under DR 2-108(D) means the attorney's fee lien.
• ABA Informal Opinion 1461 (Nov. 11, 1989): when asserting a fee lien by retaining the file prejudices the client.

See also

• VA LEO 1176: Holding a File Until Fees Are Paid
• VA LEO 1171: Copying Fees as a Condition to Release the File
• VA LEO 1366: The Whole File Belongs to the Client
• VA LEO 1157: Delivering Files After Withdrawing Over a Conflict

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1124.pdf

Original opinion text

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

Committee Opinion
Reconsideration
September 27, 1989
LEGAL ETHICS OPINION 1124

ATTORNEY’S LIEN – CLIENT’S FILE –
TERMINATING REPRESENTATION:
CONDITIONING CLIENT’S REQUEST
FOR COPY OF ENTIRE FILE UPON
PAYMENT OF PROFESSIONAL FEE.

You have advised that you represented a client for approximately two and one-half
years. At present, the client is significantly in arrears in payment of fees for your
professional services. The outstanding balance of your fee is not in dispute, but the client
is either unwilling or unable to pay. Now the client has requested a complete copy of his
entire file, which is rather extensive in volume.
You wish to know whether you may condition your compliance with the client's request
for a copy of his file upon the payment of your fee.
Disciplinary Rule 2-108(D) states that "Upon termination of representation, a lawyer
shall take reasonable steps for the continued protection of the client's interests, including
giving reasonable notice to the client, allowing time for employment of another counsel,
delivering all papers and property to which the client is entitled, and refunding any
advance payment of fees that have not been earned. The lawyer may retain papers related
to the client to the extent permitted by applicable law." It is the opinion of the
Committee that the applicable law to which DR:2-108(D) presently refers is that which
relates to an attorney's lien for legal fees owed by the client. (See LE Op. 1171)
Therefore, the retaining lien or the common law possessory lien allows an attorney to
retain a client's documents or property (except for trust funds) currently in the attorney's
possession until the fee for professional services is paid. Thus, if there is no dispute about
the fees and the client has the ability to meet the financial obligation, the lawyer may
assert a retaining lien on the client's files as security for unpaid legal fees, unless the
withholding of the files would prejudice or damage the client. ABA Informal Opinion
1461, adopted on November 11, 1989, articulates several circumstances under which the
assertion of an attorney's lien for fees by retention of the client's file would prejudice the
client and several criteria which need to be considered in determining whether to impose
the lien.
While allowing an attorney to "retain papers relating to the client," the general
provision of DR:2-108(D) requires that, upon termination of representation, the lawyer
must take reasonable steps for the continued protection of the client's interests (emphasis
added). Thus, an attorney must consider the welfare of the client and whether the
retention of the client's files will materially interfere with the client's subsequent
legal representation, thereby creating a prejudice to the client.
The Committee is of the opinion that even where a lien has been appropriately asserted,
the lawyer may need to make the file available for the client's review if totally

Committee Opinion
Reconsideration
September 27, 1989
withholding the file would prejudice the client. It is further the opinion of the Committee
that any charges imposed upon the client's account for copying the file, as a result of
making the file available to the client, are similarly subject to available legal remedies for
collection, which may not be asserted except under the appropriate circumstances.
Committee Opinion
Reconsideration
September 27, 1989
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to a former client.