86-F-106 - Retention of Client Documents

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

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:

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 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