Ethics Opinion

Opinion 71-57

FLORIDA BAR ETHICS OPINION
OPINION 71-57
December 8, 1971
Advisory ethics opinions are not binding.
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:
Opinions:

EC 5-8; DR 5-103(B) [Note: superseded by 4-1.8(e)]
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.