86-F-106 - Retention of Client Documents

FORMAL ETHICS OPINION 86-F-106


Inquiry is made concerning the attorney's retention of clients' documents in an
effort to enforce resolution of a fee dispute between the attorney and client.


The Common law recognizes an attorney's lien on client's documents to secure payment of legal
fees. See McDonald, Shea & Co. v. Railroad, 93 Tenn. 281 (1893) and Brown & Reid v. Bagley,
3 Tenn. Ch., 621 (1878).
American Bar Association Formal Ethics Opinion 209 states,
Any question as to the amount of an attorney's fee or method of its
payment is a matter of contract, expressed or implied to be
construed. Any controversy concerning such a matter is a matter of
law to be determined by the Courts. Ordinarily no ethical question
is involved in such a controversy.
This opinion will attempt to address some of the ethical obligations and concerns which may
occasionally arise from such matters.
Disciplinary Rules 2-106(A) and (B) of the Code of Professional Responsibility prohibit illegal
or clearly excessive fees for legal services.
Disciplinary Rule 2-110(A)(2) of the Code requires a lawyer, upon withdrawal from
representation, to take reasonable steps to avoid foreseeable prejudice to the rights of his client
and to deliver all papers and property.
Disciplinary Rule 7-101(A)(3) states that a lawyer shall not prejudice or damage his client.
Disciplinary Rule 9-102(B)(4) requires the lawyer to promptly deliver to the client the property in
the lawyer's possession which the client is entitled to receive.
Pursuant to the Preliminary Statement of the Code of Professional Responsibility the above cited
Disciplinary Rules are mandatory and,
state the minimum level of conduct below which no lawyer can fall
without being subject to disciplinary action.
Some of the applicable Ethical Considerations of the Code of Professional Responsibility which
provide aspirational objectives and constitute a body of principles for guidance in this matter are
as follows:
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EC 2-16 The legal profession cannot remain a viable force in
fulfilling its role in our society unless its members receive adequate
compensation for services rendered, and reasonable fees should be
charged in appropriate cases to clients able to pay them.
Nevertheless, persons unable to pay all or a portion of a reasonable
fee should be able to obtain necessary legal services, and lawyers
should support and participate in ethical activities to achieve that
objective.
EC 2-23 A lawyer should be zealous in his efforts to avoid
controversies over fees with clients and should
attempt to resolve amicably any differences on the subject. He
should not sue a client for a fee unless necessary to prevent fraud
or gross imposition by the client.
EC 2-25 The basic responsibility for providing legal services for
those unable to pay ultimately rests upon the individual lawyer, and
personal involvement in the problems of the disadvantaged can be
one of the most rewarding experiences in the life of a lawyer.
Every lawyer, regardless of professional prominence or
professional workload, should find time to participate in serving
the disadvantaged. The rendition of free legal services to those
unable to pay reasonable fees continues to be an obligation of each
lawyer, ---
EC 2-32 ---Even when he justifiably withdraws, a lawyer should
protect the welfare of this client by
---delivering to the client all papers and property to which the
client is entitled. ---and otherwise endeavoring to minimize the
possibility of harm.
EC 5-1 The professional judgment of a lawyer should be
exercised, within the bounds of the law, solely for the benefit of his
client and free of compromising influences and loyalties. Neither
his personal interests, the interests of other clients, nor the desires
of third persons should be permitted to dilute his loyalty to his
client.
EC 5-2 A lawyer should not accept proffered employment if his
personal interests or desires will, or there is a reasonable
probability that they will, affect adversely the advice to be given or
services to be rendered the prospective client. After accepting
employment, a lawyer carefully should refrain from acquiring a
property right or assuming a position that would tend to make his
judgment less protective of the interests of his client.
It therefore appears that there may be instances where there are mixed questions of legal and
ethical concern. In such instances the ethical
86-F-106 Page 3
obligations of the attorney should prevail. For example, it is unethical for an attorney to assert a
lien for legal services which is illegal or clearly excessive.
Prior to asserting a lien on the client's property for payment of legal services the attorney should
seek all other reasonable means of collection, including suggesting that the client place funds for
disputed claims in escrow with a third party, pending the proper adjudication of the matter. The
attorney's lien should only be asserted as a last resort when necessary to prevent fraud or gross
imposition by the client.
The case of Crawford v. Logan, 656 S.W.2d 360 (Tenn. 1983), wherein the attorney did not
assert a lien but instead withheld a portion of the file which the client did not know existed has
been fully considered and this opinion does not conflict with the holding of the Supreme Court
therein.
This 26th day of September , 1986.
ETHICS COMMITTEE:
Jerry C. Colley
William R. Willis
Cecil D. Branstetter
APPROVED AND ADOPTED BY THE BOARD