TIME TO GET RID OF THE RETAINING LIEN
In New York and in many other states, if you don’t pay your lawyer, the lawyer can retain all of your papers and property in his or her possession. This is called a common law retaining lien. In divorce cases, clients frequently change lawyers. When changing lawyers, if the prior lawyer is not fully paid, the outgoing lawyer can retain the file until paid in full. This type of legal blackmail can be disastrous for a litigant.
When a client changes lawyers, he or she is usually required to a pay a retainer to the new lawyer. There are often no funds to pay the prior lawyer. By retaining the file, the prior lawyer can seriously affect the client’s case going forward.
Without the file, the new lawyer is severely handicapped in litigating the case. He or she does not have the prior exchange of documents and information. Documents the client gave to the prior counsel can be withheld. The file does nothing for the outgoing attorney. It does not get him or her paid.
It is time to eliminate the retaining lien. Forcing a client to proceed to trial without a file is both unfair and barbaric, and can have a catastrophic effect on the case and the client. Outgoing attorney’s fees can be secured by a charging lien, which is a lien on the proceeds of the divorce action. The outgoing attorney would then be paid at the conclusion of the divorce action.
Unfortunately, it will probably take legislation to do away with retaining liens. And that is highly unlikely.