AN ATTORNEY'S LIEN OVER CLIENT FILE
Article by listed Attorney: Nanika Prinsloo
It often happens that attorney and client ends up in a dispute; the client ends the mandate of the attorney and then the attorney won’t hand over the client’s file until his/her fees are paid.This article examines whether an attorney is entitled to hold a client’s file until his/her fees
Certain documents in a client’s file belong to the attorney
The following documents in a client’s file belong to the attorney
1.1 Letters addressed to the attorney by the client.
1.2 Copies of letters that the attorney wrote to the client.
1.3 Notes the attorney made in a file for own use and for which the attorney does not charge the client eg. office memoranda, diary entries, notes of consultations and attendances, accounting records.
2. All other documents belong to either the client or to third parties.
How does an attorney’s lien work
The attorney is a creditor of a client until the attorneys’ fees have been paid in full. The attorney does not have a lien over the documents he/she owns. The attorney has a lien over the documents that the attorney does not own. These documents are documents that belong to the attorney’s client or third parties which the attorney actually attended to in the course of performing his/her work and in respect of which the attorney is entitled to charge a fee for reading these documents. The documents include any document that the attorney drafted or any other document that the attorney used to perform his/her duties. If a document is irrelevant and it belongs to the client or a third party, the attorneys does not have a lien over the document and must return the document to the client, even if his/her account was not paid.
If the client settles the account in full, the file must be returned to the client
Once the attorney’s account is settled in full, the attorney must hand over the file to the client,but the attorney is entitled to make copies of the documents that were subject to the lien, AND the attorney may charge the client for those copies.
What is the situation if the client can’t pay the fee but needs urgent access to the file
It is a problem in practice. The attorney needs to be protected, but so does the client. Attorneys should obtain sufficient deposits from clients before the case is started and during the case. The client should ask for statements regularly during the whole case (monthly is best) so that onedoesn’t litigate for 2 years and then end up with a statement that is impossible to pay.
If it does happen and the client can pay the bill, the Law Societies in South Africa try and weigh up the interest of both the client and the attorney. An attorney should allow a client and/or the new attorney sufficient access to the client’s file to enable him/her to gain sufficient information to take the matter further. The second (new) attorney can give an undertaking to the first attorney that all his/her costs will be paid. When the first attorney receives such an undertaking, the first attorney can give the file to the second attorney so that the matter can proceed. The second attorney must then collect the monies of the first attorney from the client and pay the first attorney. At least in this way the client’s matter does not stand still.
When must the attorney hand over the client’s file
The attorney must hand over the full client’s file once all his/her costs have been paid in full. The file should be handed over immediately upon request. If the attorney’s fees are paid in full, the attorney cannot hold the file back for the cost of any copies that the attorney has made, because the attorney cannot charge the client for these copies.
Attorney must file a notice of withdrawal
As soon as an attorney’s mandate is ended, he/she must file a notice of withdrawal on the file at Court. The attorney cannot withhold to file this notice simply because his/her fees are not paid.
Ask for a bill prepared for taxation