May a patent attorney who has withdrawn or been discharged keep the client's file until fees are paid, where releasing it would force an out-of-state collection suit?

Plain-English summary

The committee addressed a patent attorney who had withdrawn or been discharged from a case and wished to keep the client's file until fees were paid. It concluded the retention is not improper if it does not prejudice the client and if releasing the file would require the attorney to pursue an out-of-state suit for the outstanding fees and costs, citing DR 2-108(D).

Currency note

This opinion was issued in 1978, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.16(e) now 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 Treat this page as historical context, not current guidance.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: Could the attorney keep the file until the client paid?

A: Under this 1978 opinion, yes, but only if retention did not prejudice the client and releasing the file would force an out-of-state suit for the unpaid fees.

Q: What was the limit on this retaining lien?

A: The retention could not prejudice the client. The committee tied the permission to the practical difficulty of pursuing an out-of-state collection suit.

Background and rules framework

The opinion applied the former Code's DR 2-108(D) to an attorney's retaining lien over a client's file for unpaid fees. The committee note maps the question onto current Virginia Rule 1.16(e), corresponding to ABA Model Rule 1.16 on declining or terminating representation and the return of client materials.

Citations and references

Rules of Professional Conduct:

• DR 2-108(D) (former Code)
• Virginia Rule 1.16(e) (duty to provide files to a former client) (cited in the committee note)
• ABA Model Rule 1.16 (declining or terminating representation)

See also

• VA LEO 374: Retaining Depositions and Advancing Costs (withdrawn)
• VA LEO 465: Retaining Lien on Client Property for Unpaid Fees
• VA LEO 323: No File Hostage to Collect a Fee

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0292.pdf

Original opinion text

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

LEGAL ETHICS OPINION 292

PAYMENT OF FEES – RETENTION OF FILES.

It is not improper for a patent attorney who has withdrawn or been discharged from a case to retain the client's case file pending payment for services if such retention does not prejudice the client and failure to retain will require the attorney to pursue an out of state suit for payment of outstanding fees and costs. [See II: DR:2-108(D).]

Committee Opinion
March 31, 1978

Legal Ethics Committee Notes. – Rule 1.16(e) governs a lawyer’s duty to provide files to a former client.