Vol. 9, No. 4, Pg. 32. Making a Bad Situation Worse: Unhappy Clients and Their Files.

• Author: By Robert W. Martin Jr. and J. Steedley Bogan

South Carolina Lawyer

1998.

Vol. 9, No. 4, Pg. 32.

Making a Bad Situation Worse: Unhappy Clients and Their Files

32MAKING A BAD SITUATION WORSE: Unhappy Clients and Their FilesBy Robert W. Martin Jr. and J. Steedley BoganWhen a client becomes dissatisfied with your services, the first order of business is to determine whether the unhappiness results from a misunderstanding or from some shortcoming on how you or your staff handled the case. Many times a little understanding and communication go a long way toward repairing unhappy attorney-client relationships.

Should your best efforts fail and the client continues to demand his or her file, what are your choices? You may staunchly believe that you and your firm have done everything you were supposed to do and then some. As a practical matter, it doesn't matter how well you have performed. The only prudent course of action on your part is to give the client the file.

34True, South Carolina continues to recognize a lawyer's common law right to a lien on a client file. Asserting this retaining lien may have worked when lawyers were respected and feared.

Today, if a lawyer asserts the lien and the client files a complaint with the Commission on Lawyer Discipline, the first thing the lawyer should expect is a letter from Discipline Counsel advising the lawyer to forward the file to the client. Failure to forward the file is likely to be followed by the filing of a formal complaint, a hearing and a disciplinary sanction.

If you have been so bold as to continue to hang on to the file through all this, in the end the Court will tell what you should have recognized as the prudent course of action to begin with-give it back. If you do not believe this will happen, read In the Matter of Tillman, 319 S.C. 461, 462 S.E.2d 283 (1995).

Ten years before Tillman, the Court issued an opinion, In the Matter of an Anonymous Member of the South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803 (1985), recognizing a lawyer's right to a common law retaining lien. Even in 1985 the catch was that the lawyer who asserted such a lien bore the burden of proof that the lien is justified under the circumstances.

When one reads the more recent case of Tillman, it is obvious that while assertion of the retaining lien may not be a per se violation of the Rules of Professional Conduct, it is an extremely...