Are you a former client of a Palm Beach law firm who fired the law firm? Or, maybe you are a Palm Beach law firm or probate lawyer who fired a client and there is a fee dispute. Can a Palm Beach probate lawyer hold the client’s file until he or she gets paid? An August 5, 2015 Florida 3rd DCA case discusses law firm retaining liens under Florida law.
Miami Dade Appeal on Florida Retaining Lien
- A petition for writ of certiorari was filed in Florida’s 3rd District Court of Appeal for Miami Dade County.
- This Miami appeal was filed by a law firm.
- The Florida law firm wants relief from a trial court order which requires the law firm toturn over the law firm’s files in five cases to the condominium association former client.
Does a law firm have to turn over its files to a former client?
- Who owns the files of a client to a Florida law firm?
- In this recent Florida appeals case, the law firm was hired by a condo association but the condo board changed legal counsel after a while.
- The law firm asserted a retaining lien under Florida law.
- A retaining lien in Florida is a lien which a law firm has on its files when the law firm has not been paid.
- You see Florida retaining liens a lot in probate litigation cases where a beneficiary of a Palm Beach probate or a Florida estate, for example, fires its probate litigation law firm.
- The estate beneficiary or heir at law demands the immediate return of its file, or demands that the fired probate lawyer turn over the file to the new Boca Raton probate lawyer.
- Can the fired probate law firm legally keep the file?
- Let’s say, in our example, that the probate lawyer is from Delray Beach and has not been paid, and therefore, in this example, holds the files.
- Does it matter that the probate lawyer has not been paid?
- That probate lawyer is asserting a retaining lien on the file.
What does a former client need to know about law firm retaining liens of a client file when there is a fee dispute with the Florida law firm?
- Do you know the exception to a retaining lien for a probate lawyer in Florida?
- Original documents and things.
- A Floridate probate lawyer who was fired must return original documents and things to the client who fired the probate lawyer, even if the estate lawyer has not been paid in full.
Miami Dade Law Firm Sued by Former Client
- In this Miami Dade retaining lien law firm case, the former client wanted its files, but thelaw firm would not give up the files, but was holding the files as security for payment
- So the former client sued the law firm
- The Florida law firm was sued for injunctive relief and a declaration, what probate or estate attorneys call an action for declaratory relief
- Also, the former client wanted a declaration that the law firm’s contingency fee agreements were not enforceable
- Now, this Miami case was not a probate Florida case but the ruling on retaining liens is good law in the 3rd and is important to all Florida probate lawyers regardless of where their probate law firm office is or what probate courts they practice in, in Florida
Can the Palm Beach law firm or probate lawyer hold my file if there is a fee dispute?
- So, we have a Miami law firm and a former client fighting over legal fees. Not uncommon, right?
- The trial court ordered the law firm to turn over the files, at an 8:45 UMC hearing where no evidence was taken
- Most probate litigation lawyers Palm Beach know that a UMC hearing does not permit the use or introduction of evidence.
- You need to specially set a hearing, often called an evidentiary hearing to get evidence into the record
- The law firm then filed an appeal, what probate lawyers call a petition for a writ of certiorari
Florida Attorneys Have a Right to Retaining Lien
- This appeals court opinion recognized the right of a Florida attorney, including probate lawyers Florida, to a retaining lien upon all of the client’s property in the attorney’s possession
- A retaining lien is different than a charging lien
- A retaining lien covers the balance due for all legal work done on behalf of the client regardless of whether the property is related to the matter in which the property is held.
- The Miami Dade Appellate court cited the Daniel Mones PA v. Smith case, 486 So. 2d 559 (Fla. 1986) and other cases
- Doesn’t the client have a remedy? Yes ! Pay the Florida lawyer or demonstrate to the judge that the client has a “pressing need” for the property, including documents and files. Note, the client may have to post some sort of security.
- Here in this Miami appeals case on a retaining lien, there was no determination as to the validity of the law firm’s lien or even if the law firm was paid (at the trial level)
- So, there was no showing of pressing need by or of the former client.
- The petition for the writ of certiorari was GRANTED and the WRIT was ISSUED.
- The trial court’s order was QUASHED
- This Miami appeals case is Conde & Cohen, PL v. Grandview Place Condominium Assoc., Inc.
- Here is a link to read the opinion for free: http://www.3dca.flcourts.org/Opinions/3D15-1109.pdf