Andrew Hall and Associates v. Ghanem, 96-1190
| Decision Date | 04 September 1996 |
| Docket Number | No. 96-1190,96-1190 |
| Citation | 679 So.2d 60 |
| Parties | 21 Fla. L. Weekly D1978 ANDREW HALL AND ASSOCIATES, Petitioner, v. Michael H. GHANEM, Individually and as President and Director of Foreign Cars Continental, Inc., Foreign Cars Continental, Inc., a Florida Corporation, Karim Abdul Ghanem, Individually and as President and Director of Deerfield Foreign Cars, Limited, Inc., and Deerfield Foreign Cars Unlimited, Inc., a Florida Corporation, and Office of the Attorney General, Department of Legal Affairs, State of Florida, Respondents. |
| Court | Florida District Court of Appeals |
Andrew C. Hall of Andrew Hall and Associates, Miami, pro se.
Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for respondents.
After being discharged by a client, petitioner law firm seeks certiorari review of an order requiring it to relinquish its files to the client's new lawyer.
On January 26, 1996, the law firm was retained by respondents Michael Ghanem and Foreign Cars Continental, Inc. to represent them in a civil proceeding; they had been sued by the Florida Attorney General in a two count complaint alleging racketeering and civil theft. A preliminary injunction froze respondents' bank and money market accounts. On February 7, a modification to the injunction allowed the payment of attorney's fees from frozen assets upon presentation to the court of an order stipulated to by the Office of the Attorney General. Some disbursements were made to the law firm. At the end of March, respondents discharged the law firm and hired a new attorney, who filed a "motion to discharge counsel and to release files." On April 3, the law firm filed a notice of retaining lien against respondents' legal files, alleging that some of its fee remained unpaid. At the hearing on the motion for discharge, the assistant attorney general disputed whether the law firm was entitled to any additional fee out of the frozen accounts. The trial court ordered the law firm to
relinquish all clients' files to Richard L. Rosenbaum [respondents' new counsel]. The Court recognizes the lien of Andrew Hall & Associates and shall rule on the amount to be pd [sic] to them upon motion and notice.
An attorney's retaining lien on a client's papers and files is a possessory lien that the attorney holds until the fee has been paid or until adequate security for payment has been posted. Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993). Derived from the common law, the existence of the lien does not depend on any agreement between the lawyer and the client. The Flush, 277 F. 25, 29 (2d Cir.1921) (), cert. denied, 257 U.S. 657, 42 S.Ct. 184, 66 L.Ed. 421 (1922). A retaining lien differs from a charging lien, which is placed upon any money recovery or fund due the client at the conclusion of the lawsuit. 7 Am.Jur.2d Attorneys at Law § 324 (1980). A retaining lien is a passive one; it cannot be enforced through foreclosure and rests wholly upon the right to retain possession until the bill is paid. Wintter, 618 So.2d at 376. The pressure exerted by a retaining lien is directly proportional to the client's need and desire for the things in the attorney's possession. Wintter, 618 So.2d at 377. Standing alone, the client's lack of funds to pay the outstanding bill does not defeat the lien. In re San Juan Gold, Inc., 96 F.2d 60 (2d Cir.1938). The lien may not be impaired by the client...
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