Can a West Virginia lawyer hold a client's file under a retaining lien until unpaid fees are paid after the representation ends?

Plain-English summary

Rule 1.16(d) set an attorney's obligations to a client on termination of representation, whether by the attorney withdrawing or the client discharging the attorney, and a question frequently arose about the attorney's right to refuse to turn over the file until the client paid fees or expenses. Rule 1.16(d) provides that the lawyer may retain papers relating to the client to the extent permitted by law. The Committee noted that West Virginia recognizes a common law retaining lien allowing attorneys to retain a client's documents, money, or other property coming into the attorney's hands professionally until a general balance for professional services is paid, citing Capehart v. Church, 69 S.E.2d 127, 129 (W. Va. 1952), and Fuller v. Stonewall Casualty Co. of W. Va., 304 S.E.2d 347, 349 n.1 (1983).

The Committee concluded that an element of coercion may exist when an attorney retains a file in the middle of litigation, particularly when the client disputes the amount owing, and that when retention of the file would interfere with the client's ability to pursue ongoing litigation, the retaining-lien right under Rule 1.16(d) must give way to the lawyer's duty to take steps to protect the client's interest. The client is entitled to the file whether the client discharged the attorney or the attorney withdrew. The file that must be turned over consists of all material provided by the client, all correspondence, all pleadings, motions, and other filed material and discovery (including depositions), and all documents with evidentiary value that are discoverable under the Rules of Civil Procedure such as depositions and business records; that material must be released regardless of any outstanding fees or costs.

If the client has not paid attorney fees and expenses clearly owed, the attorney may withhold work product covered by Rule 26(b)(3) of the West Virginia Rules of Civil Procedure, which protects documents prepared for litigation by or for the attorney, citing In re Markle, 174 W. Va. 550, 328 S.E.2d 157, 161-63 (1985); if the client does not owe money, the attorney must turn over the work product too, since the attorney has been compensated for it. The Committee noted some jurisdictions are more stringent (permitting withholding of only opinion work product) and others permit retention regardless of prejudice to the client, and stated it tried to steer a middle course balancing the client's right to seek new counsel mid-litigation against the lawyer's right to be compensated. Because whether the conditions for asserting a retaining lien exist could be the subject of great dispute, the Committee preferred to establish a bright line not subject to much interpretation to give clear guidance.

Currency note

This opinion was issued in 1992, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 a client's file hostage for unpaid fees?

A: The opinion concluded that when retaining the file would interfere with the client's ongoing litigation, the retaining-lien right under Rule 1.16(d) must give way, and the client is entitled to the file regardless of outstanding fees or costs.

Q: What exactly must be turned over to the client?

A: The opinion listed all material provided by the client, all correspondence, all pleadings, motions, and other filed material and discovery including depositions, and all documents with evidentiary value discoverable under the Rules of Civil Procedure.

Q: Can the lawyer ever withhold anything for unpaid fees?

A: The opinion concluded the attorney may withhold work product covered by Rule 26(b)(3) of the West Virginia Rules of Civil Procedure if fees and expenses are clearly owed; if the client owes nothing, even work product must be turned over.

Background and rules framework

The opinion interpreted West Virginia's Rule 1.16(d) (Model Rule 1.16) on a lawyer's duties when representation ends, read together with West Virginia's common law retaining lien and the work-product protection of Rule 26(b)(3) of the West Virginia Rules of Civil Procedure. It drew on Capehart v. Church, Fuller v. Stonewall Casualty Co., and In re Markle, and referenced the Committee's earlier opinion L.E.I. 89-02 on a lawyer retaining a copy of the file.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.16 / WV Rule 1.16(d) (declining or terminating representation; surrender of papers and property)

Statutes and rules:

• West Virginia Rule of Civil Procedure 26(b)(3) (work-product protection for materials prepared for litigation)

Cases:

• Capehart v. Church, 69 S.E.2d 127, 129 (W. Va. 1952), common law attorney retaining lien
• Fuller v. Stonewall Casualty Co. of W. Va., 304 S.E.2d 347, 349 n.1 (1983), retaining lien
• In re Markle, 174 W. Va. 550, 328 S.E.2d 157, 161-63 (1985), work-product protection

Other opinions cited:

• L.E.I. 89-02: a lawyer may retain a copy of the file at the lawyer's own expense unless the representation agreement allocated the copying to the client

See also

• CA Op. 1992-127: Trial Counsel Aid to Appellate Counsel
• LACBA Op. 493: Disputes Between Former Clients Over Files
• WV Ethics Op. 93-02: Finance Charges on Fees

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d4fc34d046538603f.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 92-02

Attorney Retaining Liens

Rule 1.16(d) of the Rules of Professional Conduct set forth an attorney's obligations towards a client upon termination of representation whether by the attorney withdrawing or the client discharging the attorney. A question frequently arises concerning the right of an attorney to refuse to turn over the file to the client or the new attorney until the client pays the attorney's fee or expenses incurred.

Rule 1.16(d) states that "[t]he lawyer may retain papers relating to the client to the extent permitted by law." There exists in West Virginia a common law retaining lien available to attorneys "to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for professional services is paid." Capehart v. Church, 69 S.E.2d 127, 129 (W. Va. 1952); Fuller v. Stonewall Casualty Co. of W. Va., 304 S.E.2d 347, 349 n.1 (1983).

An element of coercion may exist when an attorney retains a file in the middle of litigation inconsistent with a lawyer's duties towards the client, particularly when the client disputes the amount of fees owing. When an attorney's retention of the file would interfere with a client's ability to pursue ongoing litigation, the attorney's right to a retaining lien under Rule 1.16(d) must give way to the lawyer's duty to take steps to protect the client's interest. The client is entitled to the attorney's file, whether the client discharged the attorney or the attorney withdrew.[1]

The file which must be turned over consists of all material provided by the client; all correspondence; all pleadings, motions, other material filed and discovery, including depositions; all documents which have evidentiary value and are discoverable under the Rules of Civil Procedure, such as depositions and business records. The above-described material must be released regardless of any outstanding fees or costs.

If the client has not paid attorney fees and expenses which are clearly owed, the attorney may withhold work product covered by Rule 26(b)(3) of the West Virginia Rules of Civil Procedure. Rule 26(b)(3) extends protection against general discovery to documents prepared for litigation by or for the attorney. See In re Markle, 174 W. Va. 550, 328 S.E.2d 157, 161-63 (1985). If the client does not owe the attorney money, the attorney must turn over all work product, too, since he or she has been compensated for such work.

Some jurisdictions, such as Minnesota, Georgia and Washington State apply more stringent standards, permitting the attorney to withhold only opinion work product. Others permit the retention of the file regardless of the prejudice to the client, such as Maryland, Alabama, New York, Utah and Virginia. This Committee has tried to steer a middle course to balance the rights of a client to seek new counsel in the middle of litigation with the interests of a lawyer to be compensated for his or her work.

Some jurisdictions permits an attorney to assert a retaining lien when the client owes money if certain conditions exist. Whether these conditions exist could be a subject of great dispute between the lawyer and the client. For example, Tennessee allows a retaining lien only to prevent fraud or gross imposition by the client. Colorado prohibits a retaining lien if the papers are essential to a liberty interest, the lawyer is rightfully discharged or if a contingent fee is not yet concluded. In New York County, New York, a lawyer must relinquish the lien if the client has a compelling need, such as defending against a murder charge.

The Committee prefers to establish a bright line not subject to much interpretation to provide clear guidance to attorneys seeking to comply with their ethical obligations.

This matter being adopted by the full Committee on Legal Ethics on February 7, 1992.

Charles M. Love, III, Chairman
Committee on Legal Ethics
The West Virginia State Bar

[1] In L.E.I. 89-02, the Committee stated that an attorney may retain a copy of the file at his or her own expense unless the representation agreement allocated this specific type of copying to the client.