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An attorney has a right to a retaining lien upon all of the client’s property in the attorney’s possession, including money collected for the client. A retaining lien covers the balance due for all legal work done on behalf of the client regardless of whether the property is related to the matter for which the money is owed to the attorney.

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An attorney has a right to a retaining lien upon all of the client’s property in the attorney’s possession, including money collected for the client. A retaining lien covers the balance due for all legal work done on behalf of the client regardless of whether the property is related to the matter for which the money is owed to the attorney.

Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986).

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FLORIDA STATE COURTS

Supreme Court: Daniel Mones, P.A. v. Smith, 486 So. 2d 559, 561 (Fla. 1986); Scott v. Kirtley, 152 So. 721, 724 (Fla. 1933).

First District: Smith v. Patton, 562 So. 2d 859, 860 (Fla. 1st DCA 1990).

Second District: LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So. 3d 1056, 1058 n.1 (Fla. 2d DCA 2011); JLA Inv. Corp. v. Colony Ins. Co., 922 So. 2d 249, 251 (Fla. 2d DCA 2006); Foreman v. Behr, 866 So. 2d 705, 706 (Fla. 2d DCA 2003).

Third District: Conde & Cohen, P.L. v. Grandview Palace Condo. Ass’n., 201 So. 3d 64, 65 (Fla. 3d DCA 2015); Brickell Place Condo. Ass’n., Inc. v. Joseph H. Ganguzza & Assocs., P.A., 31 So. 3d 287, 289 (Fla. 3d DCA 2010).

Fourth District: Michael J. Fingar, P.A. v. Braun & May Realty, Inc., 807 So. 2d 202, 203 (Fla. 4th DCA 2002); Leiby, Taylor, Stearns, Linkhorst & Roberts, P.A. v. Wedgewood Air Conditioning, Inc., 801 So. 2d 127, 129 (Fla. 4th DCA 2001); Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 61–62 (Fla. 4th DCA 1996).

Fifth District: Ghannam v. Shelnutt, 199 So. 3d 295, 298 (Fla. 5th DCA 2016); Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140, 1142 (Fla. 5th DCA 1984).

FLORIDA FEDERAL COURTS

Eleventh Circuit: In re Beverly Mfg. Corp., 841 F.2d 365, 368 (11th Cir. 1988).

Southern District: Stok Folk + Kon, P.A. v. Fusion Homes, LLC, 2018 WL 1444279, at *4–5 (S.D. Fla. Mar. 16, 2018); In re Alessi Family v. Centurion Dev., LLC, 261 F. Supp. 3d 1268, 1272 (S.D. Fla. 2017); JPMorgan Chase Bank, N.A. v. Ben-Ezra & Katz, P.A., 2011 WL 1322310, at *7–8 (S.D. Fla. Apr. 1, 2011).

Middle District: Rameshwar v. Minn. Life Ins. Co., 2020 WL 6037128, at *21 (M.D. Fla. June 24, 2020); Weaver v. Mateer & Harbert, P.A., 277 F.R.D. 655, 660 (M.D. Fla. 2011); Allstar Elecs., Inc. v. Honeywell Int’l, Inc., 2011 WL 4908853, at *4–5 (M.D. Fla. Oct. 13, 2011).

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2 Defenses to Claim for Lien – Retaining

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: An attorney’s retaining lien on a client’s papers and files is a possessory lien that the attorney holds until the fee has been paid or until adequate security for payment has been posted. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 61 (Fla. 4th DCA 1996).

(3) Property delivered for a specific purpose is not subject to a retaining lien. The Florida Bar v. Bratton, 413 So. 2d 754, 755 (Fla. 1982).

(4) When an attorney sues his client for payment of unpaid fees, he “abandons the passivity of the retaining lien” and his client is permitted to discover the attorney’s file. Ghannam v. Shelnutt, 199 So. 3d 295, 298 (Fla. 5th DCA 2016) (quoting Michael J. Fingar, P.A. v. Braun & May Realty, Inc., 807 So. 2d 202, 203–04 (Fla. 4th DCA 2002)).

(5) Absent a clear necessity in a criminal case where the defendant cannot post security for payment of the indebtedness or a situation where the lawyer possessing the lien is entirely at fault causing his withdrawal, the erstwhile client is entitled to delivery 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).

(6) Standing alone, the client’s lack of funds to pay the outstanding bill does not defeat the lien. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 62 (Fla. 4th DCA 1996).

(7) The value of a retaining lien rests entirely upon the attorney’s right to retain possession until the bill is paid; thus, courts may not impair that lien by compelling disclosure of the papers or items. Rathburn v. Policastro, 703 So. 2d 537 (Fla. 4th DCA 1997).

(8) Money and other property of clients coming into the hands of a lawyer are not subject to counterclaim or setoff for attorney’s fees, and a refusal to account for and deliver over such property upon demand shall be a conversion. This does not preclude the retention of money or other property upon which a lawyer has a valid lien for services or to preclude the payment of agreed fees from the proceeds of transactions or collections. R. Regulating Fla. Bar 501.1 (Comment).

(9) While no statute expressly allows accountants to assert a retaining lien, Florida Administrative Code Rule 61H1-23.003 precludes them from doing so. Blum v. Blum, 769 So. 2d 1142, 1143 (Fla. 4th DCA 2000).

(10) Attorneys’ trust accounts are subject to setoff for past legal services rendered in unrelated cases so long as the client’s funds which are entrusted to the attorney are not being held in trust for a specific purpose. Urich & Shenkman, P.A. v. Horizon Ins. Co., 491 So. 2d 1195 (Fla. 1st DCA 1986).

(11) The rule as generally stated is that an attorney’s retaining lien attaches to all property of the client that comes into the attorney’s possession, to secure payment of all debts—including fees and costs—owed by the client to the attorney. Boroff v. Bic Corp., 718 So. 2d 348, 349 (Fla. 2d DCA 1998).

(12) The right to retain the papers is valuable to the attorney in proportion as denial of access to them causes inconvenience to the client. Where the adversary has access to documents to which the client does not, the inconvenience to the client is increased, thus enhancing the value of the lien. Smith v. Patton, 562 So. 2d 859, 860 (Fla. 1st DCA 1990).

(13) If there is a dispute between the lawyer and client as to the fee owed, the trial court may hold a hearing to liquidate the amount and determine the terms of an adequate security. Andrew Hall & Assocs. v. Ghanem, 679 So. 2d 60, 61 (Fla. 4th DCA 1996).

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