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Can my previous divorce attorney hold my files back

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gambo1

Junior Member
What is the name of your state (only U.S. law)? CA

I have signed up with an attorney for my divorce case but during the process I got unemployed and had to let them go. And they did not do a stellar job while they were my attorneys. As far as I know, I paid my bill few days prior to letting them go. Now, back in the employed league, I retained the services of another attorney but my files are still with the old one. If they charged me more between the date I paid them and date I basically fired them, I am not sure.

My question is, can they hold my files back for an unpaid bill of theirs ? The reason I am asking, after paying the retainer for the new attorney, I am on a beans-and-rice budget and do not have much income to pay the old ones but at the same time, my next court date is coming near and my new lawyer is asking for the files. Since the attorney is not near by, I have to send a courier and pay them something, but I hate to send them to come back empty handed.

Do the old attorney have a right to hold my files back for an unpaid invoice ?

Thank you
 


S

Sycophantastic

Member
gambo1 said:
What is the name of your state (only U.S. law)? CA

I have signed up with an attorney for my divorce case but during the process I got unemployed and had to let them go. And they did not do a stellar job while they were my attorneys. As far as I know, I paid my bill few days prior to letting them go. Now, back in the employed league, I retained the services of another attorney but my files are still with the old one. If they charged me more between the date I paid them and date I basically fired them, I am not sure.

My question is, can they hold my files back for an unpaid bill of theirs ? The reason I am asking, after paying the retainer for the new attorney, I am on a beans-and-rice budget and do not have much income to pay the old ones but at the same time, my next court date is coming near and my new lawyer is asking for the files. Since the attorney is not near by, I have to send a courier and pay them something, but I hate to send them to come back empty handed.

Do the old attorney have a right to hold my files back for an unpaid invoice ?

Thank you
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What do you mean by "your files?"
 
G

George1776

Member
I understand the situation and no, the lawyer cannot keep your files as hostage.

Write them a letter saying that you are either a) coming over to collect them at a certain time/date or b) report them to the bar association or c) send them a demand letter demanding the materials back or a civil suit will be commenced against the law firm.

In the future, make copies of anything you provide to your attny. A fire could break out as well.

Any discovery documents from the oposing party may be obtained from the opposing attny too .. most attnys would want you to pay for the copies but should provide them.
 
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gambo1

Junior Member
tranquility said:
Sycophantastic actually asked a good question.
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My files as in the paperwork they generated filling a legal box, which I have been charged north of $10K. These are the files I am referring to.

And yes, I have done more than asking them, I visited them about 2.5 months after the disolution of our attorney-client contract, because someone from the office of these people left me a message, saying, my files were ready to be picked up. I could not go for about 2 months due to work obligations and when I showed up, I was told that the attorney's copy has not been made, so they can not give it to me at that time.

Now, I can make 100+ miles one-way trip anymore and have to send a courier. And I hate to pay the courier their fee to see them come back empty handed as I do not believe they did not have the copies. They just held back my documents to skim some more money out of me. And no, I do not want to get into an argument with a legal person about why I should pay more as I have paid all my bills for what they have done.
 
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tranquility

Senior Member
The attorney cannot ethically withhold your "file". What that means can be problematical. When you write:
paperwork they generated filling a legal box
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it shows there could be a problem in forcing the attorney to give them up. However:
which I have been charged north of $10K.
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would transfer some of the rights to you.

And no, I do not want to get into an argument with a legal person about why I should pay more as I have paid all my bills for what they have done.
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That seems the only way to do things. There is no magic wand to waive to get rid of a legitimate dispute.

Since there is an ethical duty, send a certified letter to the attorney demanding your files. Tell them the history of your attempts to get the file and give them a specific time you will retrieve them. (Give them 14 days.) Tell them if the files are not prepared and ready on that time you will suffer irreparable harm and that you will report them to the Bar in addition to exploring your legal remedies. Use some of the following citations in your letter (From Rule 1.16:500 Mitigating Harm to Client Upon Withdrawal):
Duties to client on termination

The general rule provided by CRPC 3-700(A)(2) is that a California lawyer "shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, and allowing time for employment of other counsel. . . ." In addition, a California lawyer must "promptly release to the client, at the request of the client, all the client papers and property." CRPC 3-700(D)(1). Although a lawyer is required to take reasonable steps to avoid prejudice to the client's interests, normally a lawyer would not be required to provide additional professional services once a successor counsel has been retained absent special circumstances. In addition, the provision requiring return of client papers and property is meant to clarify that the former counsel has a duty to provide the client's files to the new counsel. Academy of California Optometrists, Inc. v. Superior Court (3rd Dist. 1975) 51 Cal.App.3d 999, 124 Cal.Rptr. 668; Weiss v. Marcus (2nd Dist. 1975) 51 Cal.App.3d 500, 124 Cal.Rptr. 297. These provisions do not prohibit a lawyer from making a copy of the client's files at the lawyer's own expense, or prohibit the lawyer from filing a claim to recover the lawyer's expense in any subsequent legal proceeding.

The California rule, however, differs from the MR and the DR, and states that a lawyer must return the papers and property of the client "at the request of the client." CRPC 3-700(D)(1). The California rule also defines papers and property of the client to include "correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not." The case law also makes clear that a lawyer's work product belongs to the client whether or not the lawyer has been paid for his services. Kallen v. DeLug (2nd Dist. 1984) 157 Cal.App.3d 940, 203 Cal.Rptr. 879, 885.
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