THE RECORD - New York City Bar Association

A M O R E E Q U I T A B L E R E T A I N I N G L I E N
inconvenience to the client.” 3 The “inconvenience” stems from the inability
of the client’s new counsel to represent the client easily, well, or
with required speed without the case file. From this perspective, the retaining
lien is very different from the charging lien, which is used after
the litigation is over and threatens the client’s wallet, but not the client’s
litigation prospects. 4 It is the Committees’ understanding, based upon
anecdotal evidence and complaints to grievance committees, that the power
afforded the attorney by the retaining lien has resulted in overreaching
by some attorneys, intentionally or not, that can and should be addressed
formally.
The very basic conflict of interest between attorney and client inherent
in enforcement of the retaining lien has made codification of the
retaining lien difficult. The difficulties are palpable in the amendments
to the Massachusetts disciplinary rules concerning the retaining lien. Massachusetts
DR 2-110 (A) (4) (d) provides that “[i]f the attorney and the
client have not entered into a contingent fee agreement, the client is
entitled only to that portion of the attorney’s work product . . . for which
the client has paid.” Yet, Massachusetts’ DR 2-110 (A) (4) (g) states that,
“[n]otwithstanding anything in this Disciplinary Rule to the contrary,
[an attorney is required] to make available materials in the client’s file
when retention would prejudice the client unfairly.” Recognizing the conflict
between subsection (d) and subsection (g), the Massachusetts Board of
Bar Overseers explained with respect to subsection (g) that the inconsistency
was the by-product of compromise:
The Board too had some concern that this might be an exception
that could swallow the rule, and it was for that reason that it
was not included in the draft originally submitted to the Court.
After the issue was raised by the Court’s Rules Committee . . .,
3. Rivkin v. A. J. Hollander & Co., 1996 WL 633217 at *3 (S.D.N.Y. 1996) (quoting Goldman
v. Rafel Estates, Inc., 269 A.D. 647, 58 N.Y.S.2d 168, 170-71 (1st Dep’t 1945)).
4. In Misek-Falkoff v. International Business Machines Corp., 829 F. Supp. 660, 664 n.6
(S.D.N.Y. 1993), Judge Broderick noted
If a retaining lien were to become an even moderately foreseeable possibility
in federal question litigation, sophisticated litigants would insist on having
their own copies of all papers to protect themselves against potential withholding
of files. This would defeat the lien and at the same time increase the
cost of litigation. These concerns do not apply to retention of funds, as opposed
to files, where the retention would not obstruct the course of litigation.
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