Asserting Possessory Lien Rights and Responding to Former Client’s Request for Files
At the conclusion of the representation of a client, the client often requests a copy of the "file." If the lawyer’s fees remain unpaid, the lawyer may want to assert lien rights. If no lien rights are claimed, a question often arises as to what parts of the file must be provided and whether the lawyer can charge the client for the expense of copying the file. The Rules of Professional Conduct shed light on both questions.
I. The attorney’s possessory lien.
A. Issue: What are the ethical limitations on a lawyer’s right to assert a lien on the papers or money of a client or former client?
B. Conclusion: A lawyer cannot exercise the right to assert a lien against files and papers when withholding these documents would materially interfere with the client’s subsequent legal representation. Nor can the lien be asserted against monies held in trust by the lawyer for a specific purpose or subject to a valid claim by a third party.
C. Discussion: Attorneys have a "retaining" or a "possessory" lien under RCW 60.40.010 against papers or money in the lawyer’s possession. In contrast to a "charging" lien under RCW 60.40.010(4) on a judgment obtained for a client, the retaining lien on papers or money cannot be foreclosed. Ross v. Scannell, 97 Wn.2d 598, 647 P.2d 1004 (1982). The lien "may merely be used to embarrass the client, or, as some cases express it to ‘worry’ him into the payment of the charges." Gottstein v. Harrington, 25 Wash. 508, 511, 65 P. 753 (1901).
The client, however, retains an absolute right, in civil cases at least, to terminate the lawyer at any time for any reason, or for no reason at all. RPC 1.16(a)(3); Belli v. Shaw, 98 Wn.2d 569, 657 P.2d 315 (1983). Upon termination of the relationship, RPC 1.16(d) requires that:
A lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as . . . surrendering papers and property to which the client is entitled. . . . The lawyer may retain papers relating to the client to the extent permitted by other law.
If assertion of the lien would prejudice the former client, the duty to protect the former client’s interests supersedes the right to assert the lien.
A client’s need for the files will almost always be presumed from the request for the files. But this need does not mean that in every case the assertion of a lien will prejudice the client. If there is no dispute about fees and the client has the ability to pay the outstanding charges, it is proper for the lawyer to assert the lien. In this situation, it is the former client’s refusal to pay that will cause any injury. When, however, there is a dispute about the amount owed, or the client does not have the ability to pay, the lawyer cannot assert lien rights if there is any possibility of interference with the former client’s effective self-representation or representation by a new lawyer.
The right to assert the lien against funds of the client in the lawyer’s control is also limited. For example, a lawyer may not assert a lien against monies which constitute, or which have been commingled with, child support payments. Fuqua v. Fuqua, 88 Wn.2d 100, 558 P.2d 801 (1977). Similarly, if a lawyer accepts funds from a client for a specific purpose, such as for posting a bond or paying a court imposed penalty, the failure to use the funds for the agreed purpose may constitute misrepresentation, failure to carry out a contract of employment, or failure to properly handle client funds. See, e.g., In re McMurray, 99 Wn.2d 920, 665 P.2d 1352 (1983). Funds held by a lawyer over which a third party has an enforceable lien may not be subject to the attorney’s possessory lien. See, e.g., Department of Labor and Industries v. Dillon, 28 Wn. App. 853, 626 P.2d 1004 (1981). When the funds are not held in trust for a specific purpose or subject to a valid claim by a third party, the lawyer may hold the funds subject to the lien even though the client may direct that the funds be transferred to a new attorney and claim that a refusal to transfer will prevent the client from obtaining effective representation.
If there is a dispute about the amount of fees owed, the prudent course would be for the lawyer to immediately institute court action to resolve the issue, to limit the lien to the undisputed amount, and to release the balance of funds.
Since the retaining or possessory lien cannot be foreclosed, any funds held pursuant to the lien must be held in the lawyer’s trust account. The lawyer can apply those funds against what is owed only by obtaining a judgment against the client and enforcing the judgment by the normal judgment enforcement processes.
II. Responding to a former client’s request for files
A. Issue: When a former client requests the file and no lien is asserted, what copying costs can a lawyer charge and what papers and files must be delivered?
B. Conclusion: At the conclusion of a representation, unless there is an express agreement to the contrary, the file generated in the course of representation, with limited exceptions, must be turned over to the client at the client’s request, and if the lawyer wishes to retain copies for the lawyer’s use, the copies must be made at the lawyer’s expense.
C. Discussion: In analyzing this question a lawyer’s file assembled in the course of representing a client can be broken down as follows:
(a) Client’s papers—the actual documents the client gave to the lawyer or papers, such as medical records, the lawyer has acquired at the client’s expense.
(b) Documents the disposition of which is controlled by a protective order or other obligation of confidentiality;
(c) Miscellaneous material that would be of no value to the client; and
(d) The balance of the file, including documents stored electronically.
Client’s papers—the actual documents the client caused to be delivered to the lawyer or papers, such as medical records that the lawyer has acquired at the client’s expense—must be returned to the client on the termination of the representation at the client’s request unless a lien is asserted. If the lawyer wants to retain copies, the lawyer must bear the copying expense, and would hold the copies subject to the duty of confidentiality imposed by RPC 1.6.
Aside from principles of ownership, RPC 1.16(d) requires the lawyer, upon termination of representation, to take steps to the extent reasonably practical to protect a client’s interests including surrendering papers and property to which the client is entitled. Subject to limited exceptions, this Rule obligates the lawyer to deliver the file to client. If the lawyer wants to retain copies for the lawyer’s own use, the lawyer must pay for the copies.
While the client’s interests must be the lawyer’s foremost concern, if the lawyer can reasonably conclude that withholding certain papers will not prejudice the client, the lawyer may withhold those papers. Examples of papers the withholding of which would not prejudice the client would be drafts of papers, duplicate copies, photocopies of research material, and lawyers’ personal notes containing subjective impressions such as comments about identifiable persons.
A protective order or confidentiality obligation that limits the distribution of documents or specifies the manner of their disposition may supersede a conflicting demand of a former client.
The lawyer and client can make an arrangement different from that outlined above. A lawyer and client could agree that the files to be generated or accumulated will belong to the lawyer and that the client will have to pay for all copies sent to the client. Similarly, if the client wishes the lawyer to retain copies it would be appropriate to charge the copying expense to the client.