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OPINION 88-11 (Reconsideration)
May 15, 1993
A law firm that is discharged by a client before the client's litigation is concluded may assert a retaining lien against the case file until costs advanced on behalf of the client are either reimbursed or guaranteed. However, if the law firm and client have agreed that the client's repayment of costs is contingent on the outcome of the matter, then the law firm may not ethically assert a retaining lien for outstanding costs prior to the occurrence of the contingency. Similarly, a law firm may not assert a retaining lien for fees owed in a contingent fee case until the contingency has occurred.

Opinions: 71-37, 71-57, 88-11
Cases: The Florida Bar v. Doe , 550 So.2d 1111 (Fla. 1989); Daniel Mones, P.A. v. Smith, 486 So.2d 559 (Fla. 1986); Rosenberg v. Levin , 409 So.2d 1016 (Fla. 1982); Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140 (Fla. 5th DCA 1984)

In Opinion 88-11, the inquiring attorney's firm represented a client, the plaintiff in a personal injury matter, for more than two years. The attorney stated that his firm had been ready for trial for six months, but twice moved for a continuance at the client's direction.

The client then changed attorneys. The client's new attorney previously handled a criminal matter for the client. The new attorney contacted the inquiring attorney's firm and requested the case file. The inquirer's firm had advanced costs of approximately $2,000 on the case.

The inquirer asked whether it would be ethically permissible for him to retain the case file until the outstanding costs were paid.

The Committee has revised its original opinion to clarify its views on when it is ethical for an attorney in the inquirer's position to assert a retaining lien on a file for costs or fees. Our revised opinion is set forth below.

Many attorneys are unaware that in Florida a case file is considered to be the property of the attorney rather than the client. Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn]. Under normal circumstances, an attorney should make available to the client, at the client's expense, copies of information in the file where such information would serve a useful purpose to the client. Opinion 71-37 [since withdrawn].

In appropriate situations, however, an attorney is entitled to refuse to provide copies of material in the file and instead may assert an attorney's lien. Such situations include a client's refusal to reimburse a discharged attorney for the attorney's incurred costs or to provide a reasonable guarantee to the attorney that the costs will be repaid at the conclusion of the case. See Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for an attorney to assert a lien with respect to materials in a case file, the validity and extent of the lien is a question of law to be decided by the courts.

Florida common law recognizes two types of attorney's liens: the charging lien and the retaining lien. The charging lien may be asserted when a client owes the attorney for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the attorney must show: (1) a contract between attorney and client; (2) an understanding for payment of attorney's fees out of the recovery; (3) either an avoidance of payment or a dispute regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith , 486 So.2d 559, 561 (Fla. 1986). The attorney should give timely notice of the asserted charging lien by either filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is preferred.

Unlike a charging lien, a retaining lien may be asserted with respect to amounts owed by a client for all legal work done on the client's behalf regardless of whether the materials upon which the retaining lien is asserted are related to the matter in which the outstanding charges were incurred. A retaining lien may be asserted on file materials as well as client funds or property in the attorney's possession, and may be asserted whether or not a suit has been filed. Mones , 486 So.2d at 561.

An attorney's right to assert a lien may be limited, however, by the ethical obligation to avoid foreseeable prejudice to the client's interests. What papers or documents must be furnished to a client in a particular case in order to avoid prejudicing the client's interest therein will necessarily depend on the specific facts and circumstances involved.

A related issue often arising when an attorney is discharged is the amount of fee to which the discharged attorney is entitled. In Rosenberg v. Levin , 409 So.2d 1016 (Fla. 1982), the Florida Supreme Court held that an attorney employed under a valid contract who is discharged without cause before conclusion of the matter can recover only the reasonable value of the attorney's services, limited by the maximum contract fee. In contingency fee cases, this quantum meruit action arises only upon successful occurrence of the contingency. Therefore, an attorney may not ethically assert a retaining lien for fees allegedly owed in a contingent fee case unless and until the contingency has occurred. See The Florida Bar v. Doe , 550 So.2d 1111 (Fla. 1989). Similarly, if attorney and client have agreed that the client's repayment of advanced costs and expenses is to be contingent on the outcome of the matter, then the attorney may not ethically assert a retaining lien for outstanding costs prior to the occurrence of the contingency.




[Revised: 08-24-2011]