[This post is the third in a series of posts on the issues involved with terminating a relationship with an attorney.]
As noted in previous posts on this subject, the reasons for breaking up with an attorney can be many. Sometimes it is a breakup within the law firm or the retirement of a key partner that has precipitated the decision to move files to another firm. Or it could be poor communications or even just bad lawyering.
Often times, though, the reason for the decision to move files to another attorney is money. In fact, it may even be a large disputed bill that precipitated the decision to transfer a particular file as well as other files the lawyer has to another lawyer.
Unfortunately, attorneys may have the upper hand (at least for the moment) on this issue on the issue of payment of disputed legal fees before files can be transferred. This is because many states allow attorneys to declare a “retaining” or “charging” lien on all client property they have in their possession to secure payment of their legal bills.
As noted in a prior post, the client’s file is considered as the client’s property – to the extent that the client has paid for the property – and attorneys have an ethical obligation to return all client property upon termination of the relationship. See RPC 1.16(d). However, there is a quirk in the law here that tends to favor attorneys and trump the ethics of the profession. This quirk is that attorneys may assert a “lien” on all of the client’s property in the possession of the attorney until all fees are paid. Thus it is that even though a client many have paid for 95% of what is in the file, the attorney may legally retain all the file until all fees are paid although some courts do provide for some limited exceptions to this.
Of course, the client can always choose to litigate the disputed fees. But that takes time and time means more money. Thus, most clients usually wind up submitting to this form of legalized extortion in order to get their files into the hands of another lawyer.
However, there is a saving grace for clients. And that saving grace is . . .
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