The Florida Bar
OPINION 88-11A 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.
(August 1, 1988)
(August 1, 1988)
Opinions: 71-37, 71-57
Cases: Daniel Mones, P.A. v. Smith , 486 So.2d 559 (Fla. 1986);
Dowda and Fields, P.A. v. Cobb , 452 So.2d 1140 (Fla. 5th DCA 1984); Rosenberg v. Levin , 409 So.2d 1016 (Fla. 1982)
The inquiring attorney's firm represented a client, the plaintiff in a personal injury matter, for more than two years. The attorney states that his firm has been ready for trial for the past six months, but has twice moved for a continuance at the client's direction.
The client recently changed attorneys. Her 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 would like to retain the case file until the outstanding costs are paid. He asks whether this is ethically permitted.
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 Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla. 5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn].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 a 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 Opinion 71-37 [since withdrawn].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 his file and instead may assert an attorney's lien. Such situations include a client's refusal to reimburse a discharged attorney for his incurred costs or to guarantee payment of those costs at the conclusion of the case. 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 his 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 his 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 his 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 he 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 his services, limited by the maximum contract fee. In contingency fee cases, this quantum meruit action arises only upon successful occurrence of the contingency.
In summary, it would not be ethically improper for the inquiring attorney's firm to assert a retaining lien on the case file until the outstanding costs are paid or guaranteed. Alternatively, a charging lien can be filed.