An Anonymous Member of South Carolina Bar, Matter of
| Decision Date | 15 October 1985 |
| Parties | , 69 A.L.R.4th 969 In The Matter of AN ANONYMOUS MEMBER OF the SOUTH CAROLINA BAR, |
| Court | South Carolina Supreme Court |
This matter is before the Court on a recommendation that the respondent, a member of the South Carolina Bar, be privately reprimanded. We dismiss the complaint.
The two allegations against the respondent arose out of his representation of a plaintiff in a medical malpractice action. The first allegation is that the fees contained in his retainer agreement with the client were clearly excessive in violation of DR 2-106, Supreme Court Rule 32. Both the Panel and the Executive Committee found that the fees were clearly excessive and recommend a private reprimand.
Although the fees in the agreement are probably excessive, we do not believe that any sanction is appropriate in this case. Respondent cooperated fully with the Resolution of Fee Disputes Board of the South Carolina Bar and ultimately agreed to a reduction of his fees.
The second allegation is that respondent wrongfully withheld the case file from the client. When the case was about ready for trial, the client discharged the respondent and retained another attorney in the matter.
Initially, respondent refused to release the case file to the new attorney until the balance of his fees and disbursements were paid. After agreeing to a reduction in his fees, respondent delivered the file to the new attorney.
Relying on an open letter from the Board of Commissioners on Grievances and Discipline, which was published in The Transcript in October 1984, both the Panel and the Executive Committee found that respondent had violated DR 2-110(A)(2), Supreme Court Rule 32, by withholding the case file. We disagree.
At common law, an attorney had a right to a retaining lien. 7A C.J.S. Attorney & Client § 357a (1980); 7 Am.Jur.2d Attorneys at Law § 315 (1980). A retaining lien is defined as "the right of an attorney to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for professional services is paid." 7A C.J.S. Attorney & Client § 358 (1980).
The existence of retaining liens in this State has been recognized in the cases of Keels v. Powell, 207 S.C. 97, 34 S.E.2d 482 (1945), and Perry v. Atlantic Coast Line Ins. Co., 166 S.C. 270, 164 S.E. 753 (1932). Such liens are also recognized in numerous other jurisdictions. Annot. 3 A.L.R.2d 148 (1949).
Under DR 2-110(A)(2), an attorney who withdraws from representation must deliver "to the client all papers and property to which the client is entitled." ABA Informal Opinion No. 1461 (1980) makes it clear that DR 2-110(A)(2) was not intended to make the assertion of a retaining lien unethical. In fact, DR 5-103(A)(1) specifically recognizes that an attorney may ethically "[a]cquire a lien granted by law to secure his fee and expenses."
We now hold that the retaining lien recognized by the common law still exists in this State, and that an attorney's assertion of a retaining lien is not a per se violation of Supreme Court Rule 32. 1
An attorney must, however, consider whether the assertion of a retaining lien in a particular case would be unethical. Although it involved a somewhat different factual situation, Informal Opinion No. 1461 has summarized these ethical considerations in the following manner:
Mere existence of a legal right does not entitle a lawyer to stand on that right if ethical considerations require that he forego it. For instance, EC 2-23 exhorts lawyers to forego a legal right to ".... sue a client for a fee unless necessary to prevent fraud or gross imposition by the client." The same standard should be applied in determining whether or not to exercise an attorney's lien.
The application of this standard requires the lawyer to evaluate his or her interests against interests of the client and of others who would be substantially and adversely affected by assertion of the lien. The lawyer should take into account the financial situation of the client, the sophistication of the client in dealing with lawyers, whether the fee is reasonable, whether the client clearly...
To continue reading
Request your trial
-
Attorney Grievance v. Sheridan
...not entitle a lawyer to stand on that right if ethical considerations require that he forego it." An Anonymous Member of the South Carolina Bar, 287 S.C. 250, 335 S.E.2d 803, 804 (1985). This Court will not countenance in a disciplinary proceeding such a self-help argument for vigilante law......
-
White, Matter of
...the extent permitted by other law." Id. An attorney's assertion of a retaining lien is not per se unethical. In re Anonymous Member of the Bar, 287 S.C. 250, 335 S.E.2d 803 (1985). Rather, the attorney must consider whether retention of a file would be unethical on a case by case basis. Id.......
-
Tillman, Matter of
...file for unpaid fees and (2) a "lien on representation." He derives these two liens from our decision in In re Anonymous, 287 S.C. 250, 335 S.E.2d 803 (1985) (Anonymous ). next few months, respondent refused to notify the insurance companies he no longer represented client, refused to retur......
-
Minding the Gap: a Peek at the Ethical Obligations That Arise During the In-between Times in Client Relations
...in certain circumstances to serve as security for payment of the fees or expenses. See Rules 1.8(i) and 1.16(d), SCACR; In re Anonymous, 287 S.C. 250, 335 S.E.2d 803 (S.C. 1985) (The assertion of a retaining lien is not a per se ethical violation). The burden is on counsel to show that the ......