NJSBA Family Law Section

A lot of good information back and forth, but the "take away" is that you can charge your client for the copying, but you CANNOT refuse to turn the file over if they don't pay.  You get a lien (Hanan has good samples and all the info), and/or you can pursue whatever other recourse you may have, but you can't say "I won't give you the file until you pay me $XXX" (whether XXX is $5,000 or $1).

The closest I ever came to an ethics complaint was 12 years ago on this very point.  It went all the way to a formal hearing; if I'd lost there, it would have resulted in a formal complaint being filed.  A (redacted) copy of the dismissal is attached; if there's any question on this issue and how seriously it's taken, read it.

Former client (who had received every single document as it came in / out) wanted a copy of his multi-box file.  I had it professionally copied and told client he could pick it up at his leisure.  There was a $167 bill.  I told client (who had no money issues, shall we say) that he'd have to cover the bill.  He balked. After having been told the above, I eventually ended up paying for it (yes, I could've pursued former client, but how much time are we going to spend over $167?)

Former client filed a grievance saying it was absolutely unethical (RPC 1.6(d)) to hold the file pending payment.  It didn't go further only because I'd eventually covered it and former client wasn't harmed by the delay.

Bottom line -- Be clear that you CANNOT withhold a client's file for nonpayment. If prior counsel is doing so, I suggest sending a delivery confirmation letter and letting them know -- then the question become at what point you have an ethical obligation to turn the failure to provide the file over the the Ethics Committee yourself ("snitch rule" and all that).  I would point this out in the cover letter.

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
------------------------------

The practical answer is to pay the copying costs. I would not give up my file without retaining a copy and the ethics opinion clearly states that I am entitled to the reasonable costs of copying it.

 The client should have a good part of the file anyway but for some reason, they never seem to have much, do they?

------------------------------
Robert Goldstein Esq.
Manalapan NJ
(732)972-1600
------------------------------


Original Message:
Sent: 04-06-2015 13:55
From: Geraldene Duswalt
Subject: File From Former Counsel

What about the cost of copying; I know generally the outgoing lawyer should
be reimbursed, but can he hold the file if the client feels that there
should still be retainer funds but the lawyer claims to have exhausted them.



GERALDENE SHERR DUSWALT
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In a message dated 4/6/2015 10:03:51 A.M. Eastern Daylight Time,
[email protected] writes:

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(http://community.njsba.com/network/members/profile/?UserKey=bd43c6ff-2b7d-407d-a797-1b99e862c9bd) Apr 6, 2015 8:56 AM _Valerie
Hemhauser, Esq_
(http://community.njsba.com/network/members/profile/?UserKey=bd43c6ff-2b7d-407d-a797-1b99e862c9bd) Eric,

Advisory Committee on Professional Ethics # 54 has firmly opined that
holding a former client's file pending payment of any outstanding fees is
unethical and gives rise to a cause of action for disciplinary action. New
Jersey case law, including Frenkel and others make clear that former counsel
is required to turn over the file of a former client despite the existence
of an attorney lien for an outstanding balance that may be due for legal
services rendered. The appropriate remedy to collect an outstanding fee from
a prior client engaged in current litigation is a charging lien.

Hope that helps.


VALERIE HEMHAUSER, ESQUIRE
Attorney ID No. 014061990
Office: 732-842-9993
Fax: 732-842-9995
Email: [email protected]
Website: www.familylawyerinnj.com

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