Can an attorney hold a client's papers under the attorney's lien statute when the client needs them in pending litigation, and is the rule against secret recording still valid?

Plain-English summary

The Committee was asked whether two earlier opinions remained valid: Opinion 77-2, on holding a client's papers under the attorney's lien statute (AS 34.35.430(a)), and Opinion 78-1, on the prohibition against attorneys recording telephone conversations. It explained that formal opinions continue in effect until modified or repealed by the Board of Governors or affected by an Alaska Supreme Court decision.

On Opinion 78-1, which had adopted ABA Opinion 337 and stated that no lawyer should record any conversation, by tape or other electronic device, without the consent and prior knowledge of all parties, the opinion concluded there had been no contrary action by the Board of Governors or the Alaska Supreme Court, so that opinion continues in full force and effect.

On Opinion 77-2, which had treated whether an attorney may hold a client's papers under the lien statute as a question of law rather than ethics and concluded that exercising the lien in a legally proper manner after justifiably terminating the representation does not violate DR 2-110(A)(2), the opinion concluded the earlier opinion had been substantially affected by Miller v. Paul, 615 P.2d 615 (Alaska 1980), which now represents Alaska law on attorney's liens. The opinion summarized Miller v. Paul: EC 2-32 does not mandate returning a client's files when the client terminates the relationship; if the client does not initiate the withdrawal or has just cause to discharge the attorney, ethical considerations mandate return of the files; the court may require security for release, taking listed factors into account; and where the discharge is due to a conflict of interest or other prohibited conduct, the court may order transfer without security. Economic duress may not be used to prevent a client from terminating the relationship, though a court may require a bond where the client can post one without substantial hardship. Because Miller v. Paul governs the release of files when the attorney terminates the relationship, the opinion concluded Opinion 77-2 has no further force or effect.

Currency note

This opinion was issued in 1983, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited lien statute and case law may have changed, and the rules governing client files and recording have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules and current law before relying on any specific rule or holding mentioned here.

Common questions

Q: Can an attorney hold a client's files under the attorney's lien statute?

A: The opinion concluded that Opinion 77-2, which had recognized the lien after a justified termination, has been superseded by Miller v. Paul, which now governs release of a client's files when the attorney terminates the relationship.

Q: When must a lawyer return a client's files under Miller v. Paul?

A: As the opinion summarized Miller v. Paul, if the client does not initiate the withdrawal or has just cause to discharge the attorney, ethical considerations mandate return of the files, though a court may require security for release in some circumstances.

Q: Is the rule against secretly recording conversations still valid?

A: Yes. The opinion concluded Opinion 78-1's rule, that no lawyer should record any conversation without the consent and prior knowledge of all parties, continues in full force and effect.

Background and rules framework

The opinion revisited two earlier opinions under the former Code: the withdrawal and file-return provisions (DR 2-110(A)(2), EC 2-32), the subjects now treated by Model Rules 1.16 (terminating representation) and 1.15 (client property), and the recording rule of Opinion 78-1 (adopting ABA Opinion 337). It treated the lien itself as a question of law governed by the attorney's lien statute (AS 34.35.430(a)) and the Alaska Supreme Court's decision in Miller v. Paul.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-110(A)(2), EC 2-32 (withdrawal and return of client files) (cf. Model Rules 1.16, 1.15)

Statutes:

• AS 34.35.430(a) (attorney's lien)

Cases:

• Miller v. Paul, 615 P.2d 615 (Alaska 1980), governs release of client files on termination; supersedes Opinion 77-2

Other opinions cited:

• Alaska Ethics Opinion 78-1 (adopting ABA Opinion 337; still in force); Alaska Ethics Opinion 77-2 (no further force)

See also

• Alaska Ethics Op. 2012-1: Recording an Attorney Lien on Client Property
• Alaska Ethics Op. 95-6: Withholding a Client File for Copying Charges
• Alaska Ethics Op. 2003-1: Undisclosed Recording of Conversations

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/83-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 83-2
May an Attorney Hold a Client's Papers Pursuant to the Attorney Lien
Statute when the Papers Would Be Helpful to the Client in Pending
Litigation?
The Committee has been asked whether Ethics Opinions 77-2 (relating to
holding a client's papers pursuant to the attorney's lien statute, AS
34.35.430(a)) and 78-1 (relating to the prohibition of attorneys recording
telephone conversations) are still valid.
Formal Ethics Opinions of the Alaska Bar Association are adopted by the
Board of Governors, and continue in full force and effect until subsequently
modified or repealed by the Board of Governors, or until affected by a decision
of the Alaska Supreme Court. Any request for the consideration of the repeal or
modification of any Formal Ethics Opinion should be directed to the Alaska Bar
Association Ethics Committee, which will then present the matter to the Board
of Governors along with its recommendation.
Ethics Opinion 78-1, adopted by the Board of Governors on October 28,
1978, adopts American Bar Association Opinion No. 337. The rule stated in
those opinions is:
No lawyer should record any conversation, whether by tapes or other electronic
devices, without the consent and prior knowledge of all parties to the
conversation.
Since that opinion was issued, there has been no contrary action by the
Board of Governors or action by the Alaska Supreme Court on this point.
Accordingly, this opinion continues in full force and effect.
Ethics Opinion 77-2 deals with whether an attorney may hold a client's
papers pursuant to the attorney's lien statute, AS 34.35.420(a), when the
papers would be helpful to the client in pending litigation. The opinion holds
that the question of whether an attorney can hold the client's papers pursuant
to a lien is a question of law rather than ethics and that an attorney does not
violate DR 2-110(A)(2) by exercising the lien in a legally proper manner after
justifiably terminating the representation of the client.
Ethics Opinion 77-2 has been substantially affected by Miller v. Paul, 615
P.2d 615 (Alaska 1980), which presently represents the law of Alaska with
respect to attorney's liens. Miller v. Paul, in summary, provides:
(1) EC 2-32 does not mandate the return of a client's files when the client
terminates the attorney/client relationship.
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(2) If the client does not initiate the withdrawal, or if there is just cause for the
client to discharge the attorney, ethical considerations mandate return of the files.
(3) Taking certain listed factors into account, the court may require certain
security to be posted for the release of files.
(4) If the discharge is due to a conflict of interest or other type of conduct
prohibited by the Code of Professional Responsibility, the court may order that
the files be transferred without any security.
The Supreme Court points out that economic duress may not be utilized
to prevent a client from exercising the right to terminate the relationship with
the attorney. On the other hand, where the client is well able to post a bond or
give other security without the imposition of substantial hardship, there is no
impediment to the court imposing such a requirement.
Ethics Opinion 77-2 deals with a situation where the attorney justifiably
terminated the attorney/client relationship, and recognizes the attorney's lien
in that situation. Miller v. Paul, on the other hand, states that if the client does
not initiate the withdrawal, ethical considerations mandate return of the files
(EC 2-32). This being the case, Miller v. Paul, 615 P.2d 615 (Alaska 1980)
governs the release of the client's files when the attorney/client relationship is
terminated by the attorney. Ethics Opinion 77-2 has no further force or effect.
Approved by the Board of Governors on June 8, 1983.

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