ETHICS DOCKET NO. 1989-11

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1989-11

Attorney’s Lien; Safekeeping Property

Your letter of inquiry poses the following facts: Attorney A maintains a voluminous file on his client's litigation, among which are signed original documents. Sometime before the trial date, Attorney A is granted leave to withdraw. His client thereafter hires Attorney B to review the entire case, including Attorney A's files. The client, through Attorney B, requests that the file be delivered to him intact. Attorney A, probably fearing a complaint, wants to retain his complete file and offers to allow the client to have it photocopied.

The three principal issues raised are as follows: (1) to whom do the documents in Attorney A's files belong; (2) may Attorney A retain the client's original documents; and (3) assuming Attorney A may not retain the original documents, who is responsible for the cost of photocopying the file?

In April of 1986, Maryland adopted the Maryland Rules of Professional Conduct, thereby replacing the Maryland Code of Professional Responsibility. With respect to the provisions applicable to this ethical opinion, the substituted language is ""substantially identical"" to that replaced. Accordingly, we follow prior opinions and case law which had previously interpreted the similar provisions of the Maryland Code of Professional Responsibility.

1. To whom do the documents in attorney A's file belong?
   In the absence of a contractual agreement between the client and the Attorney to the contrary, all documents are the property of the client.
2. May Attorney A retain the client's original documents?
   The ethical right of a Maryland Attorney to retain a client's file after withdrawal from service is controlled by the Mode Rule 1.16 (d) of the Maryland Rules of Professional Conduct. This rule states that ""[u]pon termination of representation, a lawyer shall 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…The lawyer may retain papers relating to the client to the extent permitted by other law."" (emphasis added).
   The right of an Attorney to exercise a retaining lien has been recognized judicially in Maryland. Ashman v. Schecter, 196 Md. 168, 76 A.2d 139 (1950); Attorney Grievance Commission of Maryland v. McIntire, 286 Md. 87, 405 A.2d 273 (1979). In addition, the right of an Attorney has also been adopted by statute. Md. Ann. Code, Art. 10, Sec. 46 (1987). In both instances, the lien is expressly dependent on the client's nonpayment of fees and compensation to which the Attorney may be owed. Both the retaining lien and the statutory Attorney's lien are passive in nature.
   Because these are matters of law, the Committee cannot opine as to the application of these liens in a given factual scenario. However, the Committee has rendered opinions in the past which consider the Attorney's right to a retaining lien. We call your attention to Docket Number 81-33 which contains a more detailed opinion on this matter.
3. Assuming Attorney A may not retain the original files, who is responsible for the costs of photocopying the file?
   The Committee has previously considered the question of who bears the responsibility for reproduction costs in a similar factual context. In Docket Number 84-8, the Committee cogently characterized the question as a contractual, legal issue and properly declines to render an opinion regarding that part of the inquiry. We reaffirm this position.