Conduct and service

When is a lien not a lien?

The question of when a solicitor is entitled to exercise a lien over his papers in respect of monies owed to the firm generates numerous enquiries.

Such questions usually arise where a client has changed firms under circumstances in which his matter has some urgent issues that need attention and which result in his new solicitors needing prompt access to the papers, but the client is disinclined to pay the solicitor's bill because of the issues that prompted his departure from the firm in the first place.

The whole matter is given added piquancy when the client is legally aided.

The question of whether a lien exists is primarily a legal one, in which the Office for the Supervision of Solicitors (OSS) will not get involved.

But this issue is frequently referred to the OSS in other guises, particularly that of failing to release a client's papers.

A yet more complicated set of circumstances arose, though, when Mr A terminated X & Co's retainer and instructed Y & Co.

X & Co refused to release its file, claiming a lien in respect of its unpaid costs.

Y & Co issued proceedings against X & Co, seeking a declaration that that firm's bill was unenforceable, and therefore so was its lien.

Y & Co lost, and Mr A was ordered to pay X & Co's costs, the order not to be enforced without leave of the court.

Mr A then terminated Y & Co's retainer and instructed Z & Co to take over the conduct of the original action.

Z & Co advised that Mr A could not challenge the lien further.

Mr A thereupon paid the outstanding bill and asked for his file.

Now came the twist.

X & Co still refused to release the file, claiming it now had a further lien in respect of the costs owed to it in respect of Mr A's unsuccessful litigation to overturn its original lien.

Z & Co lodged a complaint on behalf of Mr A with the OSS, that X & Co was in breach of its obligation to release Mr A's papers.

Z & Co argued that there could be no lien because a solicitors lien had to arise from monies owed to a firm in respect of unpaid costs which themselves, derived from a valid retainer.

That was not the case with X & Co, as the monies owed to the firm were owed as the result of unsuccessful litigation against it in which its former client was actually its opponent.

What would have been your reaction? In the event, the matter went to the Compliance & Supervision Committee as a conduct issue.

The committee decided that this was a legal question on which there was, in any event, no clear authority and that it could not therefore find there had been any misconduct.

The committee indicated that any question of whether or not a valid lien could be claimed in these circumstances could be decided only by a court.

l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.