We join in the recommendation of the Advisory Committee on Professional Ethics that the Supreme Court amend Rule of Professional Conduct 1.16(d) to add the sentence: “No lawyer shall assert a common law retaining lien.” The reasons advanced in the committee’s opinion [NJLJ, Nov. 26] and in Restatement of the Law (Third), The Law Governing Lawyers, Section 43(1) (2005), are compelling.
The recommended change corrects a fundamental inconsistency in RPC 1.16(d), as presently written. When representation terminates, the Rule requires a lawyer to “take steps to the extent reasonably practicable to protect a client’s interests, such as … surrendering papers and property to which the client is entitled” but allows the lawyer to “retain papers relating to the client to the extent permitted by law.” Thus, the lawyer is duty bound to protect the client’s interest, but exercising the common law retaining lien may withhold the very papers that the client needs to protect his interest in litigation or otherwise.
