Foor v. Huntington Nat. Bank, 85AP-167

• Decision Date: 11 February 1986
• Docket Number: No. 85AP-167,85AP-167
• Citation: 27 Ohio App.3d 76,499 N.E.2d 1297,27 OBR 95
• Parties: , 27 O.B.R. 95 FOOR, Appellee, v. HUNTINGTON NATIONAL BANK et al.; Billman, Appellant.
• Court: Ohio Court of Appeals

Page 76

27 Ohio App.3d 76

499 N.E.2d 1297, 27 O.B.R. 95

FOOR, Appellee, v. HUNTINGTON NATIONAL BANK et al.; Billman, Appellant.

No. 85AP-167.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 11, 1986.

Syllabus by the Court

1. An order overruling a motion to quash a subpoena duces tecum issued to a nonparty witness is appealable since the nonparty witness has no recourse other than to appeal from the order overruling the motion to quash.

2. A retaining lien is a common-law lien of an attorney attaching to all property, papers, documents and money of the client coming into the attorney's hands during the course of his representation of the client and gives the attorney the right to retain possession of such property, papers, documents and money as security for fees and expenses due the attorney in connection with the professional relationship between the attorney and client.

3. Pursuant to a subpoena duces tecum, a court may require an attorney to produce papers, held under a retaining lien, for the use of his former client, conditioned upon the former client's giving security for payment of the fee secured by the retaining lien.

4. In a situation where a client seeks a subpoena duces tecum to obtain papers held by his former attorney under claim of a retaining lien, and where security in the amount of the attorney's fees might impose an onerous burden upon the client who disputes the amount of the fee, a summary proceeding to determine the amount of the legal fees due may be appropriate.

Robert G. Palmer, Judith D. Moss, Columbus, for appellee.

Crabbe, Brown, Jones, Potts & Schmidt, Jeffrey M. Brown, William T. McCracken, Columbus, for Huntington Nat. Bank et al.

Donald Lynn Billman, Columbus, pro se.

WHITESIDE, Judge.

This is an appeal from an order of the Franklin County Court of Common Pleas overruling a motion of appellant, Donald Lynn Billman, to quash a subpoena duces tecum issued against him by plaintiff-appellee, Roberta Jean Foor, requiring Billman, an attorney, to produce papers in his possession relating to his former representation of plaintiff prior to institution of the present action by her.

Billman is not a party to this case but, instead, is a witness against whom a subpoena duces tecum was issued upon plaintiff's request requiring Billman to appear and to bring with him:

"All records in your possession relative to a certain Note and Mortgage purportedly signed by Roberta Jane [sic] Foor on January 20, 1976, in favor of Huntington National Bank; including, but not limited to, communications with Huntington National Bank, documents, case files, account records of services rendered and charges therefor, etc."

Billman filed a motion to quash the subpoena duces tecum upon the ground that he has an attorney's retaining lien upon the papers in question for amounts due him for representation of plaintiff in connection with the prior matters.

The trial court had sustained a similar motion with respect to a prior subpoena duces tecum but, in overruling the present motion to quash, the trial court rendered a written decision stating in pertinent part:

"2. [It is a] general principle of Ohio law, subject of course to exceptions, that an attorney has [a] lien on the documents in his possession until the client has paid the reasonable value of the attorney's services.

"3. The client may obtain the papers and property to which he is entitled.

"The best reasoned approach in Ohio and other jurisdictions appears to be that an attorney's lien for services must be secondary to the right of a litigant to evidence necessary for the prosecution of a case depending upon items in the possession of the litigant's former attorney.

" * * *

"The Court has reviewed the file herein to determine the need plaintiff might have for the papers in her previous transactions with defendant through the office of Donald Billman.

"From the pleadings and interrogatories filed herein, the Court finds that the principles of law, evidence and discovery involved call upon the Court to order disclosure by attorney Donald Billman, for inspection and copy, of such papers as are in his possession relating to his former representation of plaintiff.

"The Court is reluctant to order the papers released while there appears to be an active dispute as to compensation for attorney's services, but plaintiff's need for and right to the documents must be the overriding consideration."

In support of this appeal, Billman has raised five assignments of error as follows:

"1. The trial court erred in directing plaintiff's former attorney to permit plaintiff's present ' * * * counsel or other representative of plaintiff * * * to inspect and copy * * * ' the file which said former attorney prepared in regard to his representation of plaintiff and otherwise erred in not quashing plaintiff's subpoena duces tecum.

"2. The trial court erred in not protecting plaintiff's former attorney's retaining lien rights once they were asserted as a defense to the demand that his file be produced for inspection and copying by plaintiff's present counsel upon her subpoena duces tecum.

"3. The trial court erred in ordering plaintiff's former attorney to permit a blanket inspection and copying of his file without requiring the plaintiff or her present attorney to identify those papers to which she claimed to be legally entitled and to further conclusively establish how, by what theory, she became entitled to something which she has not paid for.

"4. The trial court erred in ordering plaintiff's former attorney to permit inspection and copying of the file which he prepared at an earlier day in regard to his representation of plaintiff upon which he claims a lien for legal services performed by him without having, as a condition precedent, required the former client to pay, or guarantee payment with a surety bond in an amount satisfactory to the former counsel, the legal services fee due her former attorney.

"5. The trial court erred in not convening a summary proceeding for the purpose of determining the legal fees due the former counsel."

The threshold issue raised by plaintiff Foor is whether the order from which Billman appeals is a final appealable order or, in other words, whether Billman has a right of appeal from the order overruling his motion to quash the subpoena duces tecum.

Ordinarily, a motion to quash a subpoena duces tecum is not a final appealable order. In re Coastal States Petroleum (1972), 32 Ohio St.2d 81, 290 N.E.2d 844 . See, also, Cobbledick v iUnited States (1940), 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. On the other hand, it has been held that an order overruling a motion to quash a subpoena duces tecum issued to a nonparty witness is appealable since the nonparty witness has no recourse other than to appeal from the order overruling the motion to quash. Covey Oil Co. v. Continental Oil Co. (C.A. 10, 1965), 340 F.2d 993, 997. Similarly, an order with respect to a subpoena duces tecum was found appealable in United States v. Nixon (1974), 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 wherein the Supreme Court stated at 690-691, 94 S.Ct. at 3099:

"The finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals. * * * In applying this principle to an order denying a motion to quash and requiring the production of evidence pursuant to a subpoena duces tecum, it has been repeatedly held that the order is not final and hence not appealable. * * * This court has

["]'consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.' * * *

"The requirement of submitting to contempt, however, is not without exception and in some instances the purposes underlying the finality rule require a different result. For example, in Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950 (1918), a subpoena had been directed to a third party requesting certain exhibits; the appellant, who owned the exhibits, sought to raise a claim of privilege. The Court held an order compelling production was appealable because it was unlikely that the third party would risk a contempt citation in order to allow immediate review of the appellant's claim of privilege. * * * That case fell within the 'limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual's claims.' * * * "

R.C. 2505.02 permits appeals from an order made in a special proceeding affecting a substantial right. In defining what constitutes a special proceeding, and affects a substantial right, the Supreme Court has adopted a balancing test, weighing the harm to the prompt and orderly disposition of litigation against the need for immediate review because of impracticality of appeal after final judgment. See Guccione v. Hustler Magazine, Inc. (1985), 17 Ohio St.3d 88, 477 N.E.2d 630; Russell v. Mercy Hospital (1984), 15 Ohio St.3d 37, 472 N.E.2d 695; and Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253 .

The right of an attorney to a retaining lien is a substantial right. Enforcement of the subpoena duces tecum would destroy the effectiveness of that retaining lien. Delay until after final judgment between the parties to this action would be of no avail to appellant Billman since the issues involved would be essentially moot because of enforcement of the subpoena duces tecum. As stated in Amato, supra, at 258, 423 N.E.2d 452:

" * * * [W]e determine that whether an order is made in a special proceeding is resolved...