 SPECIAL EDITION FOR NEW BAR MEMBERS ETHICS CORNER QUANDARY Ally McBay accepted a personal injury case for Morty Johnson on a one-third contingency fee basis. After months of grueling negotiations, Ally received a sizable settlement offer from the insurance company on the other side. When she calls to tell her client about the offer, Morty informs her that he no longer requires her representation and he wants all his files - now! Ally knows that Morty is going straight to the insurance company to accept the settlement, thereby depriving her of the contingency fee. Besides pursuing "her" money, Ally's not sure if she must give him his client file. ETHICAL ANSWER Generally, "a client's entitlement to papers, money or other property in the lawyer's possession, and the right of the lawyer to impose an attorney's lien on those papers or property are . . . matters of state law," according to ABA Informal Ethics Opinion 1461. Even if the relevant state law provides for attorneys liens, most states' ethics guidelines require that lawyers prevent "foreseeable prejudice" to the rights of a client that would result from retaining papers pursuant to a lien. The ABA Model Rule of Professional Conduct 1:16, Comment 9, states: "Even if the lawyer has been unfairly discharged by the client, a lawyer must take all responsible steps to mitigate the consequences to the client. The lawyer may retain papers as security for a fee only to the extent permitted by law." If Ally's retention of Morty's client file would prejudice him (for instance, if the settlement offer expires within a certain period of time or if the statute of limitations is about to run on Morty's claim), she must turn over his file. If you find yourself in an ethical quandary, contact ABAETHICSearch at [ctrprofesp@abanet.org].  
|
