Could a discharged lawyer withhold the client’s file while seeking a contingent fee or asserting a lien?

Plain-English summary

A personal-injury client discharged Attorney X before suit or settlement and hired Attorney Y. Y requested the file and offered to pay X for time spent. X asked about delivery, the contingent-fee agreement, and an attorney’s lien.

The committee said X must deliver papers and property the client was entitled to receive and could not delay withdrawal merely while seeking payment. It declined to define every item of client property or decide the lien’s legal scope. It reaffirmed earlier Opinion 82-9: when retaining papers under a lien would prejudice the client’s case, the lawyer must subordinate the lien and deliver the papers.

The opinion also applied the excessive-fee and fee-division rules. On the stated facts, X had produced no recovery, and taking the full contingent fee after Y obtained one suggested excessiveness. A division with Y would require the client’s informed consent and the other conditions of DR 2-107.

Currency note

This opinion was issued in 1991 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee decide the validity of Attorney X’s lien?

A: No. It treated the scope and enforceability of the lien and retainer agreement as legal questions outside its authority.

Q: Could X delay withdrawal until paid?

A: No, apart from tribunal permission if required or steps needed to avoid prejudice to the client.

Q: What if retaining the file would prejudice the client’s new case?

A: The committee reaffirmed that X had to subordinate the lien and deliver papers to which the client was entitled.

Background and rules framework

The opinion applied DR 2-106 on excessive fees, DR 2-107 on fee division, DR 2-110 on withdrawal, and DR 9-102(B)(4) on delivery of client property.

Citations and references

Vermont Code of Professional Responsibility:

• DR 2-106; DR 2-107; DR 2-110(A)(2), (B)(4); DR 9-102(B)(4).

Other opinions cited:

• Vermont Opinion 82-9; ABA Informal Opinions 1376 and 1461.

See also

• Vermont Ethics Op. 00-03: Discharged appointed counsel
• Vermont Ethics Op. 05-04: Advance flat and minimum fees

Source

• Landing page: VBA withdrawal opinions
• Original PDF: Vermont Advisory Opinion 91-03
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”