Can a Vermont lawyer with unpaid fees withhold a former client's file?
Apply this to your situation
This page answers the general question as of 1999. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
After withdrawing from a personal injury matter, the lawyer claimed unpaid costs and fees and offered the file to successor counsel. The client sought materials directly. The committee held that the lawyer had to deliver the property the client was entitled to receive, including medical records obtained for the case, even if the lawyer thought successor counsel could better help interpret them.
The committee distinguished materials delivered by the client, the end product of the lawyer's work, and other materials useful to the client from the lawyer's internal notes and memoranda prepared for the lawyer's own use. It said the latter need not be delivered under the earlier opinions it applied.
The existence of an attorney's lien was a contract-law question outside the committee's ethics determination. The opinion nevertheless said the fee underlying any lien had to be reasonable under Rule 1.5 and that the lawyer may have to subordinate the lien and deliver papers if retention would prejudice the client's case.
Currency note
This 1999 opinion expressly applied the Vermont Rules of Professional Conduct that it says became effective September 1, 1999. Later amendments or opinions may have changed the analysis. Verify current rules before relying on its treatment of client files or liens.
Common questions
Q: Must the lawyer give the client medical records obtained for the case?
A: Yes. The committee held that the medical records were useful to the client and had to be delivered directly if the client insisted, even though the lawyer offered to provide the file to new counsel.
Q: May the lawyer keep internal notes?
A: The opinion says a lawyer need not deliver internal notes and memoranda generated for the lawyer's own purposes while working on the client's problem.
Q: Can the lawyer assert a lien for unpaid fees and costs?
A: The opinion treats the existence of a lien as a contract-law question. It says any fee basis must be reasonable and that the lawyer may have to subordinate a lien if withholding papers would prejudice the client's case.
Background and rules framework
The committee applied Vermont Rule 1.16(d), which addresses surrender of papers and property on termination, and Rule 1.5 on reasonable fees. It relied on its earlier Opinions 91-3 and 82-9 and cited ABA Informal Opinion 1376 for the file-material categories.
Citations and references
Rules of Professional Conduct:
- Vermont Rules of Professional Conduct 1.16(d), 1.5
Other opinions cited:
- Vermont Opinion 91-3, delivery of client papers and property
- Vermont Opinion 82-9, attorney liens and client prejudice
- ABA Informal Opinion 1376, file materials to return to a client
See also
- Vermont Ethics Op. 91-03: Client file and attorney lien
- Vermont Ethics Op. 97-10: Settlement check dispute
Source
- Landing page: Vermont Bar Association attorney lien opinions
- Original PDF: Advisory Opinion 99-07
What do the rules say today, for your facts?
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