Did you know that if you don’t pay your lawyer’s fees, your lawyer can claim a lien over your file, including any important documents that they have received in the process of acting for you? A lien is a lawyer’s right to keep a client’s property until the client has paid all fees and money they owe the lawyer. This article explains what you can do if a lawyer claims a lien over your legal file and you want it back.
How to Get Your File Back
You have five main options when a lawyer claims a lien over your file:
1. Pay the Costs
The simplest way to resolve the matter is to pay back the costs that you owe your lawyer. Once paid, your lawyer will no longer have a right to the lien and is required by law to return your file in full.
2. Negotiate With Your Lawyer
Depending on the circumstances, you may be able to reach an agreement with your lawyer regarding the file and unpaid fees. If you have a new lawyer, they can advise you on how to deal with your former lawyer. For example, you might reach an agreement on a payment plan or negotiate a reduced amount that you need to repay. Alternatively, you might agree to pay an amount as security or a guarantee for the unpaid costs in return for the file if you need it for ongoing litigation.
3. Apply For a Court Order to Release the File
You can make an application to the Supreme Court and request that the court makes an order to release your documents. The court will consider all the circumstances of your situation before making any orders and will consider facts such as:
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- whether you or the lawyer terminated the agreement;
- whether you need the file for court proceedings that are underway and how far advanced those proceedings are; and
- how much money you owe your lawyer and how much you have already paid them.
However, bear in mind that an application like this will take time and money. You should take your new lawyer’s advice on whether such an application is likely to be successful.
4. Ask the Legal Services Commissioner to Release the File
There is an independent body in each state that deals with complaints about lawyers. They can assist with disputes such as fee disputes and dealing with a lien. For example, in New South Wales, the Office of the Legal Services Commissioner can order a lawyer to release a file if it determines it is fair and reasonable in the circumstances. You will need to make a formal complaint to the body in your state and set out the details of your dispute.
5. Have Your Costs Assessed
If you think your lawyer has charged too much or if you dispute any aspect of the fees that you owe them, you can have an expert costs consultant independently review them. You can do this at the same time as making an application to the court or a complaint to the independent body that deals with complaints about lawyers. However, you should be aware you can only have costs assessed within 12 months of receiving the bill.
Have You Changed Lawyers?
Liens are commonly used when clients change lawyers and you owe fees to the former lawyer. Your rights to the file depend on whether you or your lawyer ended the retainer. If you ended the retainer, the lawyer is entitled to keep the file until their bill is paid in full. If your lawyer ended the retainer, then they should make the file available for ongoing proceedings, in return for a promise or security for the unpaid fees. In many cases, the old and new lawyer will sign a three-party agreement with you that deals with any of these conditions regarding the file.
Key Takeaways
It is important to be aware that if you don’t pay a lawyer’s bills for any reason, they are entitled to claim a lien and hold onto your file and any related documents you may have given them. If you need the file for any reason, such as ongoing court proceedings, you may need to seek advice about your options, such as:
- giving security;
- having costs assessed; or
- seeking court orders in relation to the file.
If you have any questions about liens or need legal assistance concerning a lien or costs issue with another lawyer, you can contact LegalVision’s dispute resolution lawyers on 1300 544 755 or fill out the form on this page.
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