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You would be shocked if a physician refused to share your medical records with another physician treating you until he had received the fee he claimed to be due. Yet in at least 35 states, lawyers can do just that by asserting a retaining lien over a client’s papers or property in their possession. The law should not allow this. The lien works by pressuring clients to pay whatever fees their lawyers claim in order to retrieve papers or property that they need immediately. As one court said, its “effectiveness . . . is proportionate to the inconvenience of the client in being denied access to his property.” One could also say that the inconvenience is proportionate to the trust the client showed by letting his lawyer keep valuable property. Discourages trust The lien’s effect is thus to penalize and discourage clients from doing what the profession claims clients should be doing-lending their lawyers the documents and valuables needed to handle their cases properly. Licensing lawyers to threaten their own clients with disproportionate harm in order to collect a disputed fee stands in blatant contrast with the professional and fiduciary ideals of the legal profession. Retaining liens shift the burden of resolving fee disputes from lawyers to clients, who are less able to bear them. Once a lawyer freezes a client’s property, the client’s only choices are to pay the lawyer or to hire another lawyer to contest the first lawyer’s fee claim. That lawyer will probably require advance payment. As a result, even if the first lawyer’s fee claim is weak, challenging it is likely not to be worth the client’s while unless a large fee is in question. In other words, a lawyer who imposes a lien on valuable client property can often collect a few thousand dollars from the client to remove it, whether the lawyer’s fee claim is good or bad. Although it can be very unfair to clients, the retaining lien is not really useful as a fee-collection method. It works only when, at the time a fee dispute arises, the client has left with the lawyer property of substantial value, and when the client needs to retrieve that property quickly. Asserting a lien ensures that the client will never retain that particular lawyer again. If a client does seek to litigate the fee dispute, he may well come up with a malpractice claim as well. No wonder one author notes that “good lawyers understand that retaining liens are for the birds.” A lawyer wishing to increase his or her income should concentrate on good client relations, quality services, efficient firm management, effective marketing, creative fee arrangements and prompt billing. A reputation for grabbing clients’ property is not helpful. Rather than relying on retaining liens, lawyers should use other fee-collection methods that are more efficient and fairer to clients. The charging lien enables a lawyer who has recovered funds for a client to freeze that portion of them to which he or she has a good-faith claim. Unlike a retaining lien, it does not let a lawyer impound property worth far more than the claim. Requiring a client to deposit in advance the expected fee is both simple and effective, and gives clients clear (painfully clear) notice of how fee arrangements will affect them. Arbitration clauses can reduce the burden of resolving fee disputes for both lawyers and clients. Lawyers using correct procedures can also let clients pay by credit card and can charge interest on overdue accounts. Abolishing retaining liens would mean that, when a representation ends, a lawyer must promptly return a client’s property. That is no more than professional rules require now when the lien loophole does not apply. Abolition would leave lawyers free to keep documents when clients did not demand them, and to make copies of documents for their own files. And it would leave open the question of which documents belong to clients in the first place. For example, a client who agrees to pay a lawyer for drafting a document but fails to pay should not automatically be entitled to receive the document. The basic principle should simply be that a lawyer may not coerce a client into paying disputed bills by impounding the client’s papers or other property. An emerging trend California, Massachusetts, Minnesota and the District of Columbia are among the approximately 10 United States jurisdictions that have abolished the retaining lien, at least as it applies to client documents. Neither physicians nor accountants claim the right to deny a patient or client access to his or her records. Lawyers should follow their example. The law should no longer retain the retaining lien. John Leubsdorf is a professor at Rutgers School of Law-Newark. This is adapted from his recent article, “Against Lawyer Retaining Liens,” 72 Fordham L. Rev. 849 (2004).

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