Sometimes it happens that a client has a falling out with his or her attorney. It may be that there is a personality conflict, a difference in opinion as to what course of action is in the client’s best interests or a dispute over the attorney’s billing practices.
Unfortunately, these types of scenarios are very common in the family law realm where emotions are high and the client often feels taken advantage of by everyone, including their own attorney. In these types of scenarios, when the attorney-client relationship is hindered, it is usually best for all involved if the attorney-client relationship is terminated and the client finds a new lawyer.
Often the attorney-client relationship is terminated even though the client is carrying an outstanding balance with the attorney’s firm. Sometimes the client is unwilling to pay the balance owed due to a fee dispute or unable to pay it due to the client’s dire financial circumstances (often the case in divorce cases). When this issue arises the attorney may assert what is called a “retaining lien” against the client’s physical files until the unpaid bill is paid in full. Although this is legally permissible under certain circumstances, the retaining lien creates a problem for a client that needs to find a new attorney mid-way through litigation.
The new attorney will require the files in order to get up to speed on the case. Without the files, the client and his new attorney will be at a disadvantage. The retaining lien is legally permissible so long as the client is the one that terminated the relationship. If the attorney fires the client, this course of action is not permissible.
If you have been fired by your attorney, you have a legal right to your files and your original attorney should not be holding your files hostage in exchange for payment of his or her bill. The proper course of action for the attorney is to sue the client for breach of contract in a separate lawsuit. Even knowing the distinction between firing the client and being fired by the client, an attorney may nevertheless attempt to assert the retaining lien, believing that even if the client genuinely disputes the bill, he will pay it in order to get his file released.
A litigation savvy client will protect himself from the outset by NEVER providing his or her attorney with original documents. The client should always keep copies. This way he will not be at the mercy of a spurious retaining lien.
Anderson Keuscher PLLC
Reno Family Law and Divorce Attorneys