ETHICS OPINION 609-1972 LAWYER’S LIEN FOR FEES: CLIENT’S RIGHT TO LEGAL PAPERS

NUMBER 609

QUESTION.

 

A lawyer who is counsel for the administrator of an estate has completed his services in the estate administration and his fee has been paid. Is he under an obligation to comply with a demand of his client that he turn over to him copies of a stipulation settling an estate claim, the decree approving such settlement, federal and New York State estate tax returns, Totten Trust bank books and other legal papers involved in the estate proceeding? Would the answer be different if the lawyer’s fee had not been paid due to the fact that the administrator refused to endorse checks in the lawyer’s possession payable jointly to the administrator and the lawyer pursuant to the settlement stipulation?

 

ANSWER.

 

DR 5-103(A) provides that a lawyer is entitled to acquire “a lien granted by law to secure his fee or expenses”. EC 5-7 states that “it is not improper for a lawyer to protect his right to collect a fee for his services by the assertion of legally permissible liens, even though by doing so he may acquire an interest in the outcome of litigation.”

 

When a lawyer’s fees for services and expenses incurred on behalf of a client are paid, the lien no longer attaches and the lawyer is obligated to deliver the papers enumerated in the inquiry to the client on demand. As long as the lawyer’s fees and expenses remain unpaid, irrespective of the reason for such non-payment, the lawyer has a lien on all such papers, except that he can be compelled by a court in its descretion to release the lien in circumstances in which its assertion is detrimental to the client’s interest provided the client gives the lawyer security for payment. See: Robinson v. Rogers, 237 N.Y. 467, 473 (1924) and Leviten v. Sandbank, 291 N.Y. 352, 358 (1943).

 

A dispute between the lawyer and the client as to the amount of the fees and expenses due is a matter of contract which if it cannot be settled by negotiation must be decided by a court. See: ABA 209 (1940).

 

November 16, 1972