Can a lawyer keep a former client's files and property under an attorney's lien until the lawyer is paid?

Plain-English summary

The committee was unanimously of the opinion that a lawyer may assert an attorney's lien pursuant to statute for a former client's files and property in the lawyer's possession, provided that doing so would not prejudice the client. Prejudicing the client would be prohibited under DR 2-110 and DR 7-101(A)(3).

The committee noted that the attorney's lien statute provides a remedy for the client to seek adjudication of the fee and recovery of the property from the lawyer through the courts. As a general rule, the committee said, where there was sufficient time for the client to seek that statutory remedy, the client could not be prejudiced by the lawyer's assertion of the lien.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer hold a former client's files and property until the fee is paid?

A: The committee said yes, a lawyer may assert a statutory attorney's lien over a former client's files and property in the lawyer's possession, provided it does not prejudice the client.

Q: When would asserting the lien prejudice the client?

A: Prejudice to the client would violate DR 2-110 and DR 7-101(A)(3). The committee said that, as a general rule, where the client had sufficient time to seek the statute's court remedy, the client could not be prejudiced.

Q: What recourse does the client have?

A: The committee noted that the attorney's lien statute provides a remedy for the client to seek adjudication of the fee and recovery of the property from the lawyer through the courts.

Background and rules framework

The opinion reads Washington's attorney's lien statute together with DR 2-110 and DR 7-101(A)(3) of the former Code of Professional Responsibility, which barred a lawyer from prejudicing a client. The duties those rules addressed, on terminating a representation and returning client property, are now reflected in Washington RPC 1.16 and RPC 1.15A and in Model Rules 1.16 and 1.15. The committee tied the propriety of the lien to whether the client retained a meaningful chance to use the statutory court remedy.

Citations and references

Rules of Professional Conduct:

• DR 2-110 (former Washington Code of Professional Responsibility): withdrawal from employment
• DR 7-101(A)(3) (former Washington Code of Professional Responsibility): avoiding prejudice to the client

Statutes:

• Washington's attorney's lien statute (referenced by the committee as providing the client a court remedy to adjudicate the fee and recover the property)

See also

• ABA Formal Op. 02-427: security interest to secure a fee
• ABA Formal Op. 00-416: purchase of accounts receivable from a client

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=21

Original opinion text

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

Advisory Opinion: 910
Year Issued: 1985
RPC(s): DR 2-110; 7-101 (A)(3)
Subject: Attorney's lien statute; client files and property in attorney possession

The Committee was of the unanimous opinion that a lawyer may assert an attorney's lien pursuant to statute for a former client's files and property in the lawyer's possession, provided that to do so would not prejudice the client, which would be prohibited under DR 2-110 and DR 7-101 (A) (3). The Committee did note that the attorney's lien statute does provide a remedy for the client to seek adjudication of the fee and recovery of the property from the attorney through the courts. The Committee was of the opinion that, as a general rule, where there was sufficient time for the client to seek a remedy as provided by the statute, the client could not be prejudiced by the lawyer's assertion of the lien.

[Editor's Note: The Code of Professional Responsibility was superseded by the Rules of Professional Conduct after this opinion was issued.]