There was a 3rd DCA case issued two days ago, August 7, 2015, on attorney retaining liens which is worth reading and keeping in our files. If you are a Florida probate lawyer, you may want to read this Palm Beach probate commentary, or read the case, which has a link below to the full 3rd DC A opinion.
Retaining Liens Protect Florida Estate Lawyers from NonPayment
- If the attorney-client relationship terminates and counsel is still owed money, theBoca Raton estate lawyer can retain the file under certain circumstances.
- A client will usually demand that the Delray Beach guardianship lawyer transfer his or her file to their new probate attorney immediately.
- The lawyer does not have to do that if he or she is still owed money for legal services. But it needs to be done in accordance with the Rules Regulating the Florida Bar.
- If the client sues or serves a discovery demand to get the files, like this 3rd DCA case from two days ago, every estate planning lawyer Jupiter, Florida should know how to handle the hearing from both procedural and evidence standpoints.
Retaining Lien Case Helpful for Estate Planning Lawyers Boynton Beach
- I thought I would share with you a copy of the 3rd DCA opinion (link below).
- Some points to remember:
- A retaining lien is all about security.
- Florida Probate Lawyers are entitled to retain the former client’s file as security for payment.
- The Broward trust lawyer should assert the lien in writing.
- Before the lien may be quashed, an evidentiary hearing is required to determine a) if the lawyer is owed money for legal services and b) whether the lien is valid or not.
Does a Probate Lawyer Who Was Fired Have to Turn Over Her Files?
- Do the files need to be turned over?
- Typically, for the files to be turned over, the former client must demonstrate, through evidence, not oral argument, that there is a pressing need for the files.
- Even if the former client can demonstrate a pressing need, the former client may be required to post security, collateral or a bond.
- The lien may not be impaired by the client securing the right to inspect and copy the papers or compelling their production by subpoena.
- A retaining lien is different than a charging lien, which typically attaches to money recovered via judgment or settlement.
- If the Lake Worth probate lawyer has original documents or things that the client turned over, the lawyer must return those, but may retain the file
- Here is the link to read yesterday’s 3rd DCA cased on retaining liens:http://www.3dca.flcourts.org/Opinions/3D15-1109.pdf
- We recommend and normally include language in our legal services contracts, or retainer agreements, that informs the client of the existence of the retaining lien.
- But even absent such language, the Florida common law right to retain the files exists.
Trial Court Reversed in August 7, 2015 Miami Appeal Retaining Lien Case
- In this 3rd DCA case from two days ago, August 7, 2015, the trial court ordered the former law firm to turn over the files at an 8:45 a.m. UMC.
- No evidence was taken about the validity of the lien or whether money was actually owed.
- As a result, the law firm filed a petition for a writ of certiorari in the 3rd DCA. It was granted. The writ was issued.
- The trial order commanding that the firm turn over the files was quashed, because the loss of the retaining lien itself constituted irreparable harm that could never be unwound once the file or copies thereof were provided to the client.