Opinion 88-11 Reconsideration
FLORIDA BAR ETHICS OPINION OPINION 88-11 (Reconsideration) March 23, 2021 Advisory ethics opinions are not binding Under normal circumstances, a lawyer has an ethical obligation to comply with a client's or former client’s reasonable request for copies of file material where that information would serve a useful purpose to the client. Among documents a lawyer is generally required to provide to clients are the client’s own property, such as original documents with intrinsic value given to the lawyer by the client. The opinion also provides information on what documents the lawyer should consider providing copies of and what documents a lawyer generally is not required to provide. A lawyer may charge a reasonable amount for the cost of retrieving and delivering file materials to a client as well as reasonable copying charges. The cost of reproduction or other means of access should be reasonable and reflect the actual costs incurred. 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. However, if the law firm and client have agreed that the client’s repayment of costs is contingent on the outcome of the matter, then the law firm may not ethically assert a retaining lien for outstanding costs prior to the occurrence of the contingency. Similarly, a law firm may not assert a retaining lien for fees owed in a contingent fee case until the contingency has occurred. RPC: Opinion: Cases: 4-1.4, 4-1.16(d) 71-37, 71-57, 88-11, 01-1, ABA 471, Michigan R-019, Oregon 2017-192, Wisconsin EF16-03 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); The Florida Bar v. Doe, 550 So.2d 1111 (Fla. 1989); The Florida Bar v. Dorta, 794 So.2d 606 (Fla. 2001); The Florida Bar v. Varner, 992 So.2d 224 (Fla. 2008); Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982) In Opinion 88-11, the inquiring lawyer’s firm represented a client, the plaintiff in a personal injury matter, for more than two years. The lawyer stated that his firm had been ready for trial for six months, but twice moved for a continuance at the client’s direction. The client then changed lawyers. The client’s new lawyer previously handled a criminal matter for the client. The new lawyer contacted the inquiring lawyer’s firm and requested the case file. The inquirer’s firm had advanced costs of approximately $2,000 on the case. The inquirer asked whether it would be ethically permissible to retain the case file until the outstanding costs were paid. In Florida Ethics Opinion 88-11 (Reconsideration), the Committee revised its original opinion to clarify its views on when it is ethical for a lawyer in the inquirer’s position to assert a retaining lien on a file for costs or fees. The committee is further revising this opinion to offer guidance regarding providing a client with file material when no fees or costs are owed. This opinion withdraws prior 88-11 (Reconsideration) and replaces it. Florida case law indicates that the file generated by a lawyer is the property of the lawyer rather than the client. See, Dowda and Fields, P.A. v. Cobb, 452 So.2d 1140, 1142 (Fla.5th DCA 1984). Therefore, other than original papers and documents given to the lawyer by the client or previously paid for by a client, a lawyer is not obligated to provide a client with the lawyer’s original file. A lawyer, however, does have an ethical obligation to comply with a client's or former client’s reasonable request for copies of file material where that information would serve a useful purpose to the client, although the lawyer does not have to bear the cost of reproduction. See Florida Ethics Opinion 71-37 [since withdrawn on other grounds] and Florida Opinion 88-11. Several ethics rules address a lawyer’s obligation to provide a client with file information. Rule 4-1.4, Rules Regulating The Florida Bar, requires a lawyer to keep a client reasonably informed about the status of their matter and to promptly comply with a client’s reasonable request for information. Rule 4-1.16(d) requires a lawyer to protect a client’s interests when terminating a relationship by providing papers and property to which the client is entitled. The Florida Bar v. Varner, 992 So.2d 224 (Fla. 2008). (Failure to provide successor counsel with a copy of client’s file violated Rule 4-1.16(d).) In Florida Ethics Opinion 02-3, citing Rule 4-1.16, the committee reiterated that a lawyer must take steps to protect a client when withdrawing from representation, including providing copies of necessary documents. While a lawyer has a duty to provide necessary documents and useful information to a client, not all file information must be provided. Although no Florida ethics opinion or rule specifies what particular information must be provided to a client, the ABA and ethics committees of other jurisdictions have considered what particular information must be supplied or need not be provided. See ABA Formal Opinion 471, Wisconsin Opinion EF16-03, Oregon Formal Opinion No. 2017-192. A lawyer generally must provide the client’s own property, such as original documents with intrinsic value given to the lawyer by the client. In general, a lawyer should consider providing information such as: • documents filed with a tribunal; • executed instruments prepared for the client’s use; • correspondence relating to the matter that is found by the lawyer necessary to protect the client’s interests; • electronic data such as documents, records, and information in the specific client matter that the lawyer determines is necessary to protect the client’s interests; • discovery paid for by the client; • legal opinions issued at the request of the client; and • billing statements. A client or former client is generally not entitled to: • confidential information concerning another client; • internal administrative materials such as conflicts checks, work assignments, personal notes and assessments or impressions of clients; • drafts of documents and legal instruments; • unexecuted documents; • consultations regarding malpractice or ethics; or • internal legal memoranda and research materials. The above are representative but non-exclusive lists, because, depending on the underlying facts in a particular matter, the overarching duty under Rule 4-1.16 to take steps “reasonably practicable to protect the client’s interests” and prevent harm might necessitate providing the client with some types of materials that would ordinarily not be required. For example, under certain circumstances, a lawyer may have to provide unexecuted documents or the draft of a document. ABA Formal Opinion 471. Although a lawyer does not have to bear the expense of copying the file, the cost of reproduction or other means of access should be reasonable and reflect the actual costs incurred. Florida Ethics Opinion 06-1 (files stored electronically should be easily reproducible and a lawyer may charge reasonable copy charges for reproducing copies of documents). See e.g., The Florida Bar v. Dorta, 794 So.2d 606 (Fla. 2001) (Table) (Consent judgment for 30 day suspension for a lawyer who charged improper $250 administrative fee for opening file, and charged client arbitrary set fees for faxing, long distance, and courier charges without any relationship to costs actually incurred). Additionally, a lawyer may charge a reasonable amount for the cost of retrieving and delivering file materials to a client. Michigan Ethics Opinion R-019 (2000). It is advisable that these costs and the method used to determine these costs be included in the original written representation agreement with the client. In appropriate situations, however, a lawyer is entitled to refuse to provide copies of material in the file and instead may assert an attorney’s lien. Such situations include a client’s refusal to reimburse a discharged lawyer for the lawyer’s incurred costs or to provide a reasonable guarantee to the lawyer that the costs will be repaid at the conclusion of the case. See Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for a lawyer 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 lawyer for fees or costs in connection with a specific matter in which a suit has been filed. To impose a charging lien, the lawyer must show: (1) a contract between lawyer 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 lawyer 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 the client’s 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 lawyer’s possession, and may be asserted whether or not a suit has been filed. Mones, 486 So.2d at 561. A lawyer’s right to assert a lien may be limited, however, by the 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 the client’s interest therein will necessarily depend on the specific facts and circumstances involved. A related issue often arising when a lawyer is discharged is the amount of fee to which the discharged lawyer is entitled. In Rosenberg v. Levin, 409 So.2d 1016 (Fla. 1982), the Florida Supreme Court held that a lawyer employed under a valid contract who is discharged without cause before conclusion of the matter can recover only the reasonable value of the lawyer’s services, limited by the maximum contract fee. In contingency fee cases, this quantum meruit action arises only upon successful occurrence of the contingency. Therefore, a lawyer may not ethically assert a retaining lien for fees allegedly owed in a contingent fee case unless and until the contingency has occurred. See The Florida Bar v. Doe, 550 So.2d 1111 (Fla. 1989). Similarly, if lawyer and client have agreed that the client’s repayment of advanced costs and expenses is to be contingent on the outcome of the matter, then the lawyer may not ethically assert a retaining lien for outstanding costs prior to the occurrence of the contingency.