Ethics Opinion

Opinion 88-11

FLORIDA BAR ETHICS OPINION
OPINION 88-11
August 1, 1988
Advisory ethics opinions are not binding.
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.
Opinions:
Cases:

71-37, 71-57
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5th DCA 1984); Florida Ethics Opinion 71-37 [since withdrawn].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withdrawn].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.