The Florida Bar

February 22, 1965

It is not unethical for a lawyer to exercise a retaining lien, to which he is entitled by law, upon documents and funds of his client which are properly in the lawyer's custody. Whether or not he has a retaining lien is a question of law.

Canon: 14

Chairman Smith stated the opinion of the committee:

An inquiry of a member of The Florida Bar recites that a member of his firm has instituted divorce proceedings against his wife. His firm has been representing the wife's father in various legal matters including those in connection with two large condominiums. In connection with that and other representation, the father is indebted to the firm for legal fees which he has refused to pay. Further, he has instituted a grievance procedure against members of the firm which presently is pending. The firm has advised the father that, under the circumstances, it does not wish to further represent him and presented him a statement for professional services rendered to date. At the present time a sum of money is deposited in an account described as the “condominium account.” This inquiry does not indicate whether this account is, in fact, a trust account of the firm, but we assume that it is. Further, the firm also holds certain documents relating to condominium matters and certain forms which are described as “condominium forms.” The inquiry indicates that these forms are prepared by the office in question for use in connection with the firm's condominium enterprises. The father has now demanded that the lawyer transmit all “printed forms” to him.

In connection with the foregoing facts the lawyer inquires (1) whether he should transmit “all printed forms” to the father; (2) whether he can ethically assert a lien upon such forms and all other condominium documents held by his firm; and (3) whether his firm can ethically assert an attorney's lien over the funds held in the condominium account.

The Committee has no authority to pass on questions of law and we express no opinion whatsoever regarding whether the firm is legally entitled to take any of the action contemplated. Because there is a pending grievance proceeding, one member of the Committee believes that we should decline to answer any of the inquiries posed. It does not appear, however, that the grievance proceeding is related to the action now contemplated about which the request is made for our advice. For that reason, a majority of the Committee believes we should respond in limited fashion to the inquiry.

Subject to the foregoing observations it is the opinion of a majority of this Committee that it is not unethical for an attorney to exercise a retaining or attorney's lien to which the attorney is entitled by law. We cannot answer the inquiry more specifically.

[Revised: 08-24-2011]