Office of the General Counsel
| Publication year | 2009 |
| Pages | 0046 |
| Citation | Vol. 14 No. 5 Pg. 0046 |
Office of the General Counsel
Give the File Back!
by Paula Frederick
It was a long time coming, but payday is finally here," your partner gloats, rubbing his hands together. "Mrs. J thought she could weasel out on her outstanding bill after she fired us. Now she's finally got a hearing date, and she needs her file. Ha!
No fee, no file! I've got her right where I want her."
"Al," you say patiently. "I know she owes us money....a lot of money. But you can't hold her file until she pays! She has a hearing next month!"
"I'm just exercising my rights under the Attorneys' Lien Statute," Al responds.
"Yeah?" you reply. "Mrs. J will probably exercise her rights too, and call the Bar on you."
Your partner rolls his eyes. "The statute gives me the right to hold any papers of a client until my fee is satisfied."
"And the Bar Rules give you the obligation to minimize harm to your client when you withdraw," you remind him.
"But we didn't withdraw! We were fired! And we gave her copies of everything as we went along..."
"Bar Rule 1.16(d) talks about "˜termination of representation'," you point out. "It doesn't matter whether you've withdrawn or been fired. And Mrs. J doesn't just need copies of what we've already sent her, she needs the whole shebang—the pleadings and discovery filed by both sides, correspondence between us and opposing counsel, and most importantly, the photos and original documents she brought in when she hired us."
"I don't get it," Al protests. "Are there any circumstances when a lawyer can hold a file to guarantee a fee?" Very few.
Bar Rule 1.16(d) requires a lawyer to take steps to protect the client's interests when representation ends. Among other things, the Rule requires the lawyer to "surrender papers and property to which the client is entitled."
Formal Advisory Opinion 87-5 clarifies that "the file" includes everything created during billable time—files and papers for which the client will be charged, and work product intended for use in the case.
Even when a case is over, a client might suffer harm...
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