Sometimes, an attorney is discharged by his client without cause, and with a substantial amount of money due to the attorney from the client. Aside from the attorney bringing a plenary action on the debt owed by the client, the attorney may seek alternative measures through the application of liens upon the client’s cause of action or file, through the employment of either a “charging” lien or “retaining” lien.
Concerning the retaining lien
In the well-cited case of the New York State Court of Appeals, People v. Keeffe, 50 NY2d 149, 428 NYS2d 446 (1980), the Court reviewed the rights of attorneys with respect to statutory charging liens pursuant to Judiciary Law Section 475 and common-law retaining liens. The two types of liens are non-exclusive and may be asserted in an action when applicable. Concerning attorney’s retaining liens in particular, the Court noted:
“The [attorney’s retaining lien] entitles the attorney to retain all papers, securities, or money belonging to the client which comes into his possession in the course of his professional employment until the amount of his fee is fixed by agreement or by litigation, and is paid.”
Recognizing the retaining lien
The Appellate Division, Second Department, in recognizing the retaining lien of an attorney, held that it was error on the part of a trial court to direct prior counsel to transfer the papers upon which the attorney had a retaining lien before (a) determining the value of the attorney’s services, and (b) assuring that payment for those services was adequately secured. Mint Factors v. Cedar Tide Corp., 133 AD2d 222, 519 NYS2d 27 (1987). Accordingly, the attorney’s retention of the files of his client, which came into his possession through the course of his professional employment, is lawful, and he is entitled to assert his retaining lien pending the fixing of his fee and payment thereof.
In Rivkin v. A.J. Hollander & Co., Inc., 1996 WL 633217 (SDNY 1996), the court opined that: “The retaining lien, asserted against papers that otherwise have little intrinsic value, is valuable only because of the ‘inconvenience’ caused to the client from denial of access to papers involved in the lawsuit.” In his decision in Rivkin, supra, Magistrate Judge Peck held that to require prior counsel to provide such papers to new counsel would effectively eliminate the retaining lien’s protection. Further, Magistrate Judge Peck stated: “While the Court always is anxious to move its docket expeditiously, it will not do so at the expense of prior defense counsel’s retaining lien.” The retaining lien protects and supports substantial value in the form of the holding of the client file in anticipation of payment by the client.
In Eighteen Associates LLC v. Nanjim Leasing Corp., 297 AD2d 358, 746 NYS2d 599 (2002), the Appellate Division, Second Department held that, in the absence of exigent circumstances, an attorney should not be compelled to surrender the client’s file and the attorney’s lien should be respected. Exigent circumstances are determined on a case-by-case basis, considering facts such as the nature of the action (e.g. criminal or matrimonial matter) or the client’s indigency.
By Richard Klass, Esq.
“Your Court Street Lawyer”