THE RECORD - New York City Bar Association

P R O F E S S I O N A L R E S P O N S I B I L I T Y
A N D P R O F E S S I O N A L D I S C I P L I N E
indicate that enforcement of the lien is wholly discretionary with the
court. 20 Some cases require in order to invalidate an asserted retaining lien
that there be an expedited evidentiary hearing with respect to whether
the attorney was discharged for cause and, if not, the amount of the fees
due. 21 Other cases address the conditions under which other types of security
for the debt to the attorney might be substituted for the retaining
lien. 22
Possible expansion of the scope of the retaining lien was explored in
one recent case, which raised the issue of a third party’s duty to respect an
attorney’s retaining lien. 23 In that case, the court, deciding to “protect the
retaining lien,” withdrew its “so ordered” approval of opposing counsel’s
offer to provide to new counsel documents withheld by departing counsel
pursuant to a retaining lien. 24
Under New York law, the scope of an attorney’s retaining lien has
few limits. The Court of Appeals has stressed that a retaining lien permits
an attorney to hold “all papers, securities or money belonging to
the client that come into the attorney’s possession in the course of the
representation as security for payment of attorneys’ fees.” 25 The lien covers
the entire client file, 26 including not just court papers and attorney
work product, but also documents which the attorney received from the
20. See Bankers Trust Co. v. Hogan, 187 A.D.2d 305, 589 N.Y.S.2d 338, 339 (1st Dep’t
1992) (“The appellant’s retaining lien, however, is denied, and the matter of an appropriate
fee due, if any, is remanded to the Supreme Court for a hearing in accordance with its
procedures, at which hearing the reasonableness of such fees can be explored.”); see also
Franklin, Weinrib, Rudell & Vassallo, P.C. v. Stellato, 240 A.D.2d 301, 658 N.Y.S.2d 622,
623 (1st Dep’t 1997) (“Concerning defendant’s document demand, plaintiff’s retaining lien
cannot justify a refusal to disclose documents clearly needed by defendant to prosecute her
counterclaim for malpractice . . . .”).
21. See Cohen, 584 N.Y.S.2d at 118; Andreiev v. Keller, 168 A.D.2d 528, 563 N.Y.S.2d 88,
89 (2d Dep’t 1990).
22. See Manes v. Manes, __ A.D.2d __, 669 N.Y.S.2d 899, 900 (2d Dep’t 1998); Demeulenaere
v. Rockwell Manufacturing Co., 275 F.2d 572, 574 (2d Cir. 1960).
23. See Rivkin, 1996 WL 633217 at *4.
24. 1996 WL 633217 at *5.
25. Hoke, 83 N.Y.2d at 331, 610 N.Y.S.2d at 459.
26. See Katsaros v. Katsaros, 152 A.D.2d 539, 543 N.Y.S.2d 478, 478 (2d Dep’t 1989)
(ordering attorney to turn over “his client’s file in the matrimonial action”); Petrillo v. Petrillo ,
87 A.D.2d 607, 448 N.Y.S.2d 44, 45 (2d Dep’t 1982) (retaining lien covers “all papers” in
attorney’s possession); Gamble v. Gamble, 78 A.D.2d 673, 432 N.Y.S.2d 405, 406 (2d Dep’t
1980) (directing transfer of “entire litigation file”).
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