Legal Question in Legal Ethics in New York
Atty refuses to release Client File
I cannot get a definite answer on this matter.
We fired our Atty March 08-for his unethical, dishonest behavior. We agreed to file for Fee Dispute Arbitration on the remaining unpaid balance (Atty refused to discuss the bill with us!). The Atty then refused to release our File or even copies of documents in our File - we had a final Child Support hearing pending. At the hearing (pro se) the temporary child support payments were lowered as we did not have any subpoenaed docs or financial info to support our case. Also, this Atty still refuses to release our File or make copies of pertinent documents relating to our Fee Dispute - now awaiting Trial de Novo. No one at the NY State Bar can say if the Atty is required to release our File. One Atty commented that it's a breach of ethics to withold the file when it might compromise our Rights in a pending matter.
What is the ruling here in NY?
Why can't the NYBA give us an answer to this seemingly simple question?
Thank you!
P.S. We have been advised to file a grievance or complaint w/ the Ethics Committee but quite honestly, we have no confidence that anything would be done about it. We are not the only Client of this Atty who has been victimized.
1 Answer from Attorneys
Re: Atty refuses to release Client File
An attorney who has not been paid has a retaining lien on the client's file. This means the attorney may retain the file until the bill is paid. If there is a fee dispute, however, you should be entitled to receive discovery from the attorney, including copies of the documents relevant to the fee dispute. Depending on the scope of the dispute, this could mean the whole file should be disclosed.
Sometimes, attorneys attempt to use the retaining lien as a basis for refusing to give up any of the file. The law does not allow this. New York courts have held that the retaining lien cannot justify a refusal to disclose documents clearly needed by a client: (a) to defend a fee claim (Rosenberg & Estis v. Stewart, 138 Misc.2d 72, 524 N.Y.S.2d 142 (NYC Civil Ct. 1987); or (b) to presecute a claim for legal malpractice. Franklin, Weinrib, Rudell & Vassallo, P.C. v. Stellato, 240 A.D.2d 301, 658 N.Y.S.2d 622 (1st Dep't 1997).
You will probably need to get the judge to order your attorney to give you copies of the relevant documents.
If you have any other questions, please give me a call.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
