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The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 68-21
June 7, 1968

It is not unethical for an attorney to claim an attorney's retaining lien in good faith. The existence and extent of this retaining lien are questions of law.

Canon: 11
Integration Rule: §11.02(4)

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar advises as follows:

My associate and I represented ___________, who is and was a nonresident of the state, in connection with his claims as a minority stockholder in Florida corporations. As a result of disagreements which arose, we obtained leave from the Court to withdraw as his attorneys. In the course of our representation, the client delivered to us his shares of stock in the corporations for the purpose of using same for evidence in connection with the litigation. After our withdrawal as his attorneys, we were unable to obtain payment of our fees for the services rendered and filed suit against him and recovered a judgment against him in the Circuit Court of _________ County for the sum of $2,163.90. So far as we know, he has no assets in the state other than the stock, which we are holding, and we are not certain whether the judgment can be enforced in the state of his residence although there is a possibility that we might be able to collect if suit were filed there and judgment was obtained and proceedings taken to collect same.

The question presented is whether we may properly deliver the shares of stock to the sheriff for the purpose of levy upon an execution to be issued on the judgment we obtained. Under the provisions of Section 678.8–317 Fla.Stats., a levy on stock under an execution may not be made unless the officer obtained physical possession of the stock under the writ.

Section 11.02(4) of the Integration Rule provides as follows:

(4) Trust funds and fees. Money or other property entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose. Money and other property of clients coming into the hands of an attorney are not subject to counterclaim or setoff for attorney fees, and a refusal to account for and deliver over such property and money upon demand shall be deemed a conversion. This is not to preclude the retention of money or other property upon which the lawyer has a valid lien for his services or to preclude the payment of agreed fees from the proceeds of transactions or collections.

In our judgment the foregoing portion of the Integration Rule is controlling, but its interpretation with regard to the facts presents fundamentally a question of law beyond the province of this Committee, with the exception of our right to offer the obvious observations that it is not unethical for a lawyer in good faith to claim those rights which the law grants to him through an attorney's retaining lien. The existence and extent of that lien, which is traditionally considered passive and not susceptible of active enforcement, necessarily would be determined by judicial proceedings. It is our suggestion that the attorney, with appropriate notice to his client, institute proceedings to clarify his rights in the matter.

[Revised: 08-24-2011]