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
This proposal addresses the practical and ethical problems connected
with the common law retaining lien. As it has developed in our case law,
the retaining lien may put the attorney in too strong a position, enabling
the attorney to take advantage of the client. Permitting an attorney
to act against the client’s interests when the client believes that the
attorney is acting zealously on the client’s behalf conjures images of unfaithful
fiduciaries. Although it is obviously improper for the withdrawing
attorney to cooperate with the client’s adversary, the retaining lien
may indirectly achieve the same effect.
The problems are exacerbated by the self-help nature of the remedy.
It is possible that an attorney could enforce the lien on the basis of an
inflated fee or an unreasonably small balance due. The attorney need not
invoke any official process in order to use the lien, and thus if the client
is wronged it is up to the client to marshal the resources to focus the
court’s attention on the attorney’s acts. Accordingly, in determining when
the lien can be used, our proposal seeks to balance the potential prejudice
to the client and the amount the client owes the attorney.
For these reasons, we believe that clearly setting forth the retaining
lien’s parameters and limiting the self-help aspects of enforcement of the
lien would relieve the ethical quandary and prevent overreaching.
As discussed above, the disciplinary rules provide the practitioner
enforcing a retaining line with a dilemma. Zealous representation requires
terminating the representation before enforcing the lien, yet the files must
be released before the representation is terminated. Notwithstanding, given
the alternatives of requiring termination of the representation before
enforcing the lien or not, the clear choice is to require termination first
in order to uphold zealous advocacy. The statute itself can provide an
exception to the requirement to return such files before the representation
is terminated.
In New York, the retaining lien applies to “all papers, securities or
money belonging to the client.” 41 Nonetheless, some have suggested that
the retaining lien be limited to attorneys’ work product. 42 Although a broader
41. People v. Keeffe, 50 N.Y.2d 149, 155, 405 N.E.2d 1012, 428 N.Y.S.2d 446 (1980).
42. For example, Rule 1.8 (i) of the District of Columbia Rules of Professional Conduct
provide in part that “[a] lawyer may acquire and enforce a lien granted by law to secure the
lawyer’s fees or expenses, but a lawyer shall not impose a lien upon any part of a client’s files,
except upon the lawyer’s own work product, and then only to the extent that the work
product has not been paid for.” See Restatement (Third) of the Law Governing Lawyers 55
(1), Proposed Final Draft No. 1, March 29, 1996; American Lawyer’s Code of Conduct 5.5.
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