The Florida Bar

December 8, 1971

A Law firm representing a plaintiff in a wrongful death action for a contingent fee may retain its own extensive investigation file when the file is discharged without cause and the new lawyer for the former client declines to reimburse the firm for its incurred costs or to guarantee payment at the conclusion of the case.

Note: See Florida Ethics Opinion 88-11 (Rec.) for advice on retaining liens.

CPR: EC 5-8; DR 5-103(B) [Note: superseded by 4-1.8(e)]
Opinions: 62-71, 65-10

Chairman Clarkson stated the opinion of the committee:

A law firm was retained by the appropriate parties to bring actions for wrongful death. Terms of employment were set forth in a contingent fee contract containing the customary clients' agreement to reimburse the law firm for necessary costs. Thereafter, the firm made a thorough investigation of the facts of the case at substantial expense.

Several months after employing the firm, the parties discharged it without cause and advised that another lawyer would call to obtain the file. The newly retained lawyer subsequently requested that all papers, documents and other items of investigation obtained or developed by the firm be delivered to him for his use in going forward with the case. However, the new lawyer has, upon request, declined to reimburse the firm for its incurred costs or to guarantee payment of them at the time the case is concluded. Under these circumstances the firm is reluctant to relinquish possession of the materials in its possession. As a separate but related matter, the firm has filed a claim of lien in the pending court actions based upon the contingent fee contract.

A member of the firm inquires whether he may properly retain the investigation file until reimbursed for the costs advanced prior to discharge.

A majority of the Committee answers this question in the affirmative. Some do so on the basis that it is not unethical for an attorney to exercise a retaining lien or other attorney's lien authorized by law, assuming such a valid lien can be established in this instance. See Florida Opinion 62-71 and 65-10. Others reach the same result under the theory that the requested materials are work product of the firm and may reasonably be withheld until the cost of producing them has been paid by or in behalf of the clients. Indeed, other ethical considerations preclude a lawyer from advancing costs of this nature unless his client retains the ultimate liability for them. EC 5-8, DR 5-103(B), CPR.

Two members of the Committee, observing that a claim of lien for compensation has been filed in the court having jurisdiction, believe the more appropriate procedure would be to let the court determine all questions, including that raised by this inquiry. They suggest that the right to reimbursement for costs, involving as it may issues of work product and retaining lien, is so intertwined with the claim submitted to the court that all such matters should be determined by that tribunal.

We note in passing that the continued withholding of the firm's work product would likely be weighed by the court in assessing the amount of compensation to be awarded the firm pursuant to its claim of lien.

[Revised: 07-01-2014]