Can the lawyer for a deceased lawyer's estate assert an attorney's lien over a former client's files?

Plain-English summary

The inquiry concerned a lawyer for the estate of a deceased lawyer who wanted to assert an attorney's lien over the files of a former client of the deceased lawyer. The committee concluded that if the attorney's lien is lawfully assertable on behalf of the estate, there is no ethical reason why the lawyer for the estate could not assert it.

The committee separated the ethics question from the underlying legal question. Whether the lien statute is assertable by the estate of a lawyer is a legal question the committee said it could not answer. It added that if the lawyer determines there is a lawful right to assert the lien, the lawyer then has a duty to the estate to do so, along with an obligation to advise the former client of the assertion of the lien.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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: Is it ethical for the estate's lawyer to assert the deceased lawyer's attorney's lien?

A: The committee concluded that if the lien is lawfully assertable on behalf of the estate, there is no ethical reason the estate's lawyer could not assert it.

Q: Did the committee decide whether the lien statute reaches a deceased lawyer's estate?

A: No. The committee said whether the lien statute is assertable by the estate of a lawyer is a legal question it could not answer.

Q: What must the lawyer do once a lawful right to the lien is established?

A: The committee said the lawyer then has a duty to the estate to assert the lien and an obligation to advise the former client of its assertion.

Background and rules framework

The committee did not cite a Rule of Professional Conduct by number. It distinguished between the ethical question (whether asserting the lien would be improper) and the legal question (whether the lien statute reaches a deceased lawyer's estate), answering only the first and declining the second as outside its remit. Its guidance flowed from the lawyer's duty to the estate as client and the duty to keep the former client informed of the lien.

Citations and references

Rules of Professional Conduct:

• The opinion cites no rule by number. It rests on the lawyer's duty to the estate and the duty to advise the former client of the lien.

See also

• WSBA Ethics Op. 910: attorney's lien on client files and property
• WSBA Ethics Op. 933: attorney's lien and retention of a client's papers
• ABA Formal Op. 92-369: files of a deceased sole practitioner

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=56

Original opinion text

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

Advisory Opinion: 945
Year Issued: 1985
RPC(s):
Subject: Attorney's lien on estate files of deceased lawyer

Upon reviewing your inquiry concerning the action of a lawyer for the estate of a deceased lawyer asserting an attorney's lien over files of a former client of the deceased lawyer, the Committee was of the opinion that if the attorney's lien is lawfully assertable on behalf of the estate, there is no ethical reason why the lawyer for the estate could not assert the lien. The question of whether the lien statute is assertable by the estate of a lawyer is a legal question which the Committee cannot answer. However, if you determine that you have a lawful right to assert the lien, then you have a duty to the estate to do so, and you also have an obligation to advise the former client of the assertion of the lien.