What does 'applicable law' mean for an attorney's retaining lien on a client's file, and which file materials must be returned to the client?

Plain-English summary

A former client asked her attorney to return her file, but she was indebted to the attorney's office for legal fees incurred during the representation. Building on LE Op. 871 (a lawyer may retain papers relating to the file "to the extent permitted by applicable law"), the inquiry asked what "applicable law" means and which materials must be returned to the client.

The committee read DR 2-108(D), which on termination required reasonable steps to protect the client's interests, delivery of all papers and property to which the client is entitled, refund of unearned advance fees, and which allowed retention of papers "to the extent permitted by applicable law." Citing LE Op. 1171, the committee said "applicable law" is the law of an attorney's lien for fees owed; the retaining (common-law possessory) lien lets an attorney hold a client's documents or property, except trust funds, until the fee is paid. So where the fee is undisputed and the client can pay, the lawyer may assert a retaining lien as security, unless withholding would prejudice or damage the client (citing ABA Informal Opinion 1461). The general provision of DR 2-108(D) still required reasonable steps to protect the client, so the lawyer had to consider whether retention would materially interfere with the client's later representation; in some circumstances the lawyer may have to allow the client access to the file while retaining possession to preserve the lien.

On which materials are the client's property, the committee said that, besides items the client originally provided (which stay the client's), work product is purchased by the client through paying fees, so where no fees are owed the client owns the work product, whether in documentary form or as the lawyer's applied expertise (citing Scroggins v. Powell, Goldstein, Frazier & Murphy). The committee added that a lawyer may assert a retaining lien where the client is unwilling or refuses to pay and withholding would not prejudice the client, or where the lien is necessary to prevent fraud or gross imposition; even with a valid lien, the lawyer may need to make the file available for review if total withholding would prejudice the client. It urged lawyers to avoid fee controversies and to consider less stringent means of securing the amount owed (citing EC 2-25).

Currency note

This opinion was issued in 1989, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.16(e) governs a lawyer's duty to provide files to a former client. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: What does "applicable law" mean for an attorney's retaining lien on a file?

A: The committee concluded it refers to the law of an attorney's lien for fees owed, so a retaining (common-law possessory) lien lets the lawyer hold the file, except trust funds, until the fee is paid.

Q: When can a lawyer hold a file for unpaid fees?

A: Where the fee is undisputed and the client can pay, or where the lien is necessary to prevent fraud or gross imposition, and only where withholding would not prejudice or damage the client; even then the lawyer may have to allow the client access to the file.

Q: Who owns the work product if no fees are owed?

A: The committee said the client, reasoning that work product is purchased by paying fees; where no fees are owed, the client owns the work product, whether documentary or the lawyer's applied expertise.

Background and rules framework

The opinion interpreted former Virginia DR 2-108(D) (delivering papers and property on termination; retention to the extent permitted by applicable law) and EC 2-25, reading "applicable law" as the attorney's-lien law. The duty to provide a former client's file is now within Virginia Rule 1.16(e), the analog of ABA Model Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-108(D) and EC 2-25 (delivering papers and property; retaining lien)
• ABA Model Rule 1.16 (declining or terminating representation; returning the file)

Cases:

• Scroggins v. Powell, Goldstein, Frazier & Murphy, 15 B.R. 232 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R. 729 (N.D. Ga. 1982), client ownership of work product.

Other opinions cited:

• Virginia LE Op. 871 and LE Op. 1171: "applicable law" under DR 2-108(D).
• ABA Informal Opinion 1461: when a fee lien by retaining the file prejudices the client.

See also

• VA LEO 1124: Retaining Lien on a Client's File
• VA LEO 1176: Holding a File Until Fees Are Paid
• VA LEO 1171: Copying Fees as a Condition to Release the File
• VA LEO 1366: The Whole File Belongs to the Client

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1101.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1101

ATTORNEY’S LIEN – CLIENT’S FILE –
TERMINATING REPRESENTATION:
RETAINING CLIENT’S FILE TO
SECURE PROFESSIONAL FEE.

You advised that an attorney has been contacted by a former client who has requested
her file from the attorney's office; however, the client is indebted to the attorney's office
for legal fees incurred during the representation.
L E Op. No. 871 states that an attorney may retain papers relating to the file to the
extent permitted by "applicable law". You wish to know what the term "applicable law"
means and what materials must be returned to the client.
Disciplinary Rule 2-108(D) states that "Upon termination of representation, a lawyer
shall take reasonable steps for the continued protection of the client's interest, including
giving reasonable notice to the client, allowing time for employment of another counsel,
delivering all papers and property to which the client is entitled, and refunding any
advance payment of fees that have not been earned. The lawyer may retain papers related
to the client to the extent permitted by applicable law." It is the opinion of the
Committee that the applicable law to which DR:2-108(D) presently refers is that which
relates to any attorney's lien for legal fees owed by the client. (See LE Op. 1171) In other
words, the retaining lien or the common law possessory lien allows an attorney to
retain a client's documents or property (except for trust funds) currently in the attorney's
possession until the fee for professional services is paid. Therefore, if there is no dispute
about fees and the client has the ability to meet the financial obligation, the lawyer may
assert a retaining lien on the client's files as security for unpaid legal fees, unless the
withholding of the files would prejudice or damage the client. ABA Informal Opinion
1461, adopted on November 11, 1980, articulates several circumstances under which the
assertion of an attorney's lien for fees by retention of the client's file would prejudice the
client, and several criteria which need to be considered in determining whether to
impose the lien.
While allowing an attorney to "retain papers relating to the client," the general
provision of DR:2-108(D) requires that upon termination of representation, the lawyer
must take reasonable steps for the continued protection of the client's interests (emphasis
added). Thus, an attorney must consider the welfare of the client and whether the
retention of the client's files will materially interfere with the client's subsequent
legal representation, and whether the client would be prejudiced as a result. Therefore,
the Committee is of the opinion that in certain circumstances the lawyer may be required
to permit the client to have access to the file while the attorney retains possession of the
actual file in order to preserve the lien without prejudicing the client.
With regard to which materials constitute the client's property, the Committee is of the
view that in addition to the obvious fact that items in the file which were originally

provided to the lawyer by the client continue to be the property of the client, items in the
client's file which constitute attorney's work-product are purchased by the client by
the payment of legal fees. Thus, where there are no legal fees owed, the client owns the
attorney work-product, whether in tangible, documentary form or in the intangible
provision of the attorney's expertise in having applied the law to the client's fact situation
during the course of the representation. Scroggins v. Powell, Goldstein, Frazier and
Murphy, 15 B.R. 232, 240-241 (Bankr. N.D. Ga. 1981), rev'd on other grounds, 25 B.R.
729 (N.D. 1982).
The Committee opines that an attorney may assert a retaining lien on the client's
property or case file currently in his possession if the client is unwilling or has refused to
pay the attorney's fees and the withholding of the file would not damage or prejudice the
client, or if the retaining lien is necessary to prevent fraud or gross imposition by the
client. Even where a lien has been appropriately asserted, however, the lawyer may need
to make the file available for the client's review if totally withholding the file would
prejudice the client. 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.
The lawyer should consider whether there are less stringent means by which the matter
can be resolved or by which the amount owed can be secured. (See EC:2-25.)
Committee Opinion
September 29, 1989
Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide
files to a former client.