Wintter v. Fabber
| Decision Date | 26 May 1993 |
| Docket Number | No. 93-0610,93-0610 |
| Citation | 618 So.2d 375 |
| Parties | 18 Fla. L. Week. D1318 Christopher Q. WINTTER and Wintter & Cummings, Petitioners, v. Geraldine L. FABBER and the Mayfair of Boca Raton Condominium Association, Respondents. |
| Court | Florida District Court of Appeals |
Christopher Q. Wintter, Wintter & Cummings, Hollywood, for petitioners.
Geraldine L. Fabber, Boca Raton, for respondents.
Petitioners, a lawyer and his law firm, seek review by petition for writ of certiorari of an order of the lower court which 1) requires petitioners to deliver to Respondent, Fabber, all documents and exhibits which she provided to petitioners while the firm represented her and 2) which requires petitioner to furnish Fabber a photocopy of all other documents contained in counsel's client file at 15 cents per page.
It appears petitioners had represented Fabber in the present suit pursuant to a written contract of employment. She had paid petitioners a considerable amount of attorney's fees at the point in time when petitioners were allowed to withdraw because Fabber refused to pay further fees in the amount of $50,000. Counsel claimed a retaining lien upon their files created during the representation and refused to turn said files over to the client.
We believe the order being reviewed constitutes a departure from the essential requirements of law which should be reviewed at this point in the litigation because there will not be an adequate review of the ruling available to counsel at the end of this suit. The essential nature and purpose of a lawyer's retaining lien demonstrates that the trial court's ruling is erroneous.
An attorney is entitled to a lien on his client's papers, money, securities and other property coming into his possession in the course of his professional employment which gives him the right to retain possession thereof as security for payment of fees and cost. Tellier, L.S., Annotation, Rights And Remedies of Client as Regards Papers and Documents on Which Attorney Has Retaining Lien, 3 A.L.R.2d 148, (1949). The lien is generally a passive one which points up the necessity of allowing the lawyer's entitlement to possession of the subject property to secure his indebtedness. As stated in the editorial analysis in the foregoing annotation:
"The value of the attorney's retaining lien is principally in the leverage which it gives the attorney over a client who fails or refuses to pay for services rendered, through the embarrassment and inconvenience caused the client by withholding papers, documents, and other valuables; and since that lien is not one which is actively enforceable by foreclosure proceeding but merely a passive one, dependent upon continued possession of the client's property, American courts with few exceptions hold in cases where the attorney did not himself terminate the relation, that the client cannot compel his attorney, or former attorney, to deliver up papers or documents on which the attorney has a retaining lien, unless he pays the amount due the attorney, or furnishes adequate security for the payment of what may be due or subsequently found to be due him."
A similar situation presented itself in Pomerantz v. Schandler, 704 F.2d 681 (2d Cir.1983) wherein a nonparty law firm which had withdrawn as counsel sought review of a trial court order requiring it to turn over to new counsel various documents which came into its possession as a result of representing one of the parties. The Pomerantz court presented the following interesting analysis of the question at hand:
It is settled that an attorney may claim a lien for outstanding unpaid fees and disbursements on a client's papers which came into the lawyer's possession as the result of his professional representation of his client. In re San Juan Gold Inc., 96 F.2d 60 (2d Cir.1938). Upon substitution of counsel in litigation pending before it the...
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...2003)(attorney's possessory retaining lien); Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60 (Fla. 4th DCA 1996) (same); Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993); Maplewood Phase One Homeowner's Ass'n v. Cecil, 585 So.2d 370, 371 (Fla. 4th DCA 1991) ("While no statute or rule of c......
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Alessi Family Ltd. P'ship v. Centurion Dev., LLC (In re Alessi Family Ltd. P'ship)
...money, securities and other property coming into his possession in the course of his professional employment[.]" Wintter v. Fabber , 618 So.2d 375, 376 (Fla. 4th DCA 1993). A retaining lien has value through the "leverage which it gives the attorney over a client who fails or refuses to pay......
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Fingar v. Braun and May Realty, Inc.
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Lien cases
...of his papers or other property subject to the lien only if he pays the amount due or secures the payment thereof. Wintter v. Fabber , 618 So.2d 375, 377 (Fla. 4th DCA 1993). In Bratton we ruled that an attorney cannot impose a valid retaining lien on client’s funds entrusted to the attorne......