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Ethics Opinions from the Bar Association of San Francisco

OPINION 1975-4

An attorney who has withdrawn from representation or who has been discharged by the client cannot ethically maintain a retaining or possessory lien on the client's papers or property pending payment of fees or costs. It is an ethical duty to release to the client or succeeding attorney all papers, documents, or other property necessary to the continued representation of the client.

QUESTION:

May an attorney who has withdrawn from representation or who has been discharged by a client, maintain a retaining or possessory lien on the client's papers or property pending payment of fees or costs or may the attorney refuse, for any reason, to make available to the client all papers and property in the attorney's file?

OPINION
There is no retaining or possessory lien on a client's files recognized in California. Therefore, upon withdrawal or discharge of an attorney, there is an ethical duty to release to the client or to a succeeding attorney, all papers, documents or other property necessary to the continued representation of the client. All deposition transcripts, written opinions of experts, photographs, models, certified copies, and similar documents or materials for which the client has paid or for which the attorney has been reimbursed belong to the client and must be turned over to the client upon his request. All other papers in the attorney's file, including unpaid for documents or material as well as pleadings and copies of correspondence, must, on request, be made available by the attorney to the client or to a succeeding attorney for inspection and copying at the client's expense.

DISCUSSION:

At common law, two types of attorney's liens were recognized with respect to a client's property: a retaining or possessory lien and a charging lien.

A retaining lien allows a discharged or withdrawing attorney to maintain possession of the client's documents or other property until outstanding fees and costs are satisfied.

A charging lien creates an equitable right in the attorney to secure fees and costs out of the judgment recovered in the litigation for which the attorney was employed and is not concerned with the client's papers or files.

Although a possessory lien on files has been specifically recognized in more than a dozen states, California is not among them. Since such a lien is not available to an attorney in this state, documents and other property of the client in the attorney's possession may not be retained pending the payment of any outstanding fees or costs or for any other reason if the client (or succeeding attorney) requests them.

Rule 2-111 of the Rules of Professional Conduct of the State Bar of California provides in subsection A(2) as follows:

".a member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client including . . . delivering to the client all papers and property to which the client is entitled."

This Rule does not directly address the point, yet it does make clear the ethical consideration that a client should not be prejudiced by termination of the attorney-client relationship.

The Ethics Committee of the Los Angeles Bar Association has considered this question in its Opinions numbered 48, 197 and 330. In Opinion No. 197 with which we concur, the Committee stated:

"We are of the opinion, however, that an attorney should not govern his actions in this particular solely by what he may legally be compelled to do, but should, as a matter of professional ethics and good taste, allow his former client or succeeding counsel to inspect and to make copies of the file, or, if reasonable assurance be given that the papers would be returned to the attorney, the attorney should allow the former client or succeeding counsel to take the file for the purpose of having copies made if that be more convenient under the circumstances."

This opinion finds support in Texas Opinion No. 118 and Washington Opinion No. 53.

We also concur with the conclusion of the Los Angeles Bar Ethics Committee in its Opinion No. 330 that the "work product" for which the client may be billed belongs to the client although the cost of reproducing the work product in the office file of the attorney should be borne by the client, and further that documents paid for by the client such as deposition transcripts, photocopies of official records or of documents produced by the opposing party, reports of experts and the like, should be turned over to the client without charge.

The attorney is entitled to reasonable assurance that the office files will be returned by the client after inspection and copying. If such assurance is not forthcoming, the attorney must make the files available for inspection with reasonable safeguards and may arrange for the copying of the papers and documents specified by the client or succeeding attorney at a cost which will not result in a profit to the attorney.

The question may then arise as to what should happen if the client refuses to pay for the cost of duplication. It is then our opinion that the files must in any event be made available to the client for inspection. If the client demands the files, the attorney must turn them over or make photocopies or other duplication and seek (if desired) a separate civil remedy against the client for the expense.

In arriving at this conclusion, this Committee is cognizant of the October 7, 1975 opinion of the Court of Appeal, Third District in Academy of California Optometrists, Inc. v. Superior Court, 51 Cal.App.3d 999, 124 Cal.Rptr. 668. The Academy case involved the refusal by an attorney to sign a substitution of attorneys or to turn over his files to his client until the balance of a substantial (and disputed) charge for fees and costs was paid.

The attorney, by written retainer agreement, sought to reserve to himself "all general, possessory or retaining liens, and all special or charging liens known to the common law." The five-year mandatory dismissal period of subdivision (b) of Section 583 of the Code of Civil Procedure was about to expire and the client was in great need of his file.

The majority in Academy held that since there was nothing of any pecuniary value in the file which could be sold to a third party for any sum of money to be applied against the disputed claim for fees and costs (if ultimately resolved in the attorney's favor), the lien sought to be imposed by the retainer agreement was void. The dissent concurred in the result but did not agree with the distinction between pecuniary and nonpecuniary value. Since a tenet of professional ethics was violated "the court's dicta limiting our decision to property without pecuniary worth" is without logical justification. (Emphasis added.)

This Committee does not view its role as one to take a position contrary to decisional or statutory law; rather it seeks to occupy itself with attempting to guide concerned lawyers in the ethical considerations of our profession. However, since the matter relating to pecuniary vis a vis nonpecuniary value of files was defined by a justice of the Court itself to be dicta , we take this opportunity to comment.

The mere fact that a file full of pleadings, correspondence and the like could not be sold to a third party does not, in and of itself, give rise to a conclusion that the files are without value. If the client has not paid, eg., for depositions or written medical and other expert opinions or photographs, models and the like, the attorney could well have expended hundreds of dollars, even in routine cases. Furthermore, most careful lawyers for a variety of reasons (not the least of which could be apprehension of malpractice claims by a dissatisfied client) desire to maintain full and complete files even after legal services are completed. Therefore, the out-of-pocket expense when added to the substantial cost of photocopying pleadings, correspondence and the like (particularly in multiparty cases) would, in our opinion, simply be an unfair burden for the attorney to shoulder upon being discharged by the client.

CONCLUSION:

Upon the withdrawal or discharge of an attorney, the attorney must, upon request of the client, turn over to the client, or to a succeeding attorney, all documents and other property owned by or paid for by the client, such as deposition transcripts, written opinions of experts, photographs, models and the like, without cost to the client. Copies of any of the foregoing may be retained by the attorney at the attorney's own expense. All other papers, documents and files, including the "work product" of the attorney, and all documents and other property not owned by or paid for by the client, shall be made available to the client or to a succeeding attorney for inspection and copying at the expense of the client.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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