1. LEGAL RESEARCH M EM ORANDUM PROJECT #3
TO: CHARLES GUIDRY, ESQ.,
FROM: NICOLE WILLIAMS PARALEGAL
RE: ROGER GIBSONS CLIENT FILES
DATE: MARCH 26, 2015
Facts:
Roger Gibson is a sole proprietor of sporting goods and he is being sued by
Cerone Wholesale Sporting Goods and they are seeking specific performance (equitable
relief) on a supply contract (of Spalding Dyno 1000 cowhide footballs). These footballs
are the most commonly used football at the interscholastic, intercollegiate, and
professional level. Cerone Sporting Goods also alleges breach of contract and seeks
monetary damages. The client has retained our services to represent him and litigate this
commercial transaction, but before retaining our services, Mr. Gibson had retained the
services of another law firm Girardi & Stanton to prepare the case and commence work
on his behalf. After all of the document preparation and several meetings as well as
discussions regarding representation, there was a falling out between Mr. Gibson and
several attorneys of the firm. Mr. Gibson notified Girardi & Stanton that he would no
longer need their services and fired them, he then requested that his file and business
documents contained therein be returned to him. Girardi & Stanton refused to return his
files, until they were compensated for the 35 hours of labor and their outstanding bill of
$8, 250.00 for legal services has been paid.
Legal Issue:

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1. What is an attorney’s (Girardi & Stanton, LLP) retaining lien with regard to
the holding of a former client’s file?
2. Are Girardi & Stanton entitled to retain the file of Mr. Gibson until their bill is
paid and what are the rights of Mr. Gibson to have his file returned and/or
forwarded to new counsel despite his owing of $8,250.00
Discussion:
N.J.S.A 2A:13-5 pertains to an attorney’s retaining lien with regard to holding of
a former client’s file. It states “Attorney’s common law retaining lien is general which
gives attorney right to retain possession of client’s property until entire balance due for
legal services, as well as for costs and disbursements is paid; however, attorney’s
common- law retaining lien, is passive lien which is not enforceable in legal
proceedings.” According to the case of Frenkel v Frenkel 242 N.J Super. 367 (1991),
appellant’s former counsel represented the plaintiff in his matrimonial case until plaintiff
gave appellant notice that substitute counsel had been retained. Citing plaintiff's unpaid
legal fees, appellant refused a request to turn over plaintiff's file to new counsel but
moved the trial court for an order allowing his withdrawal from the case. In response,
plaintiff filed a cross-motion to compel appellant to turn over the file or a copy thereof.
After a hearing, the trial court relieved appellant as attorney for plaintiff and ordered him
to turn over a copy of the file to plaintiff's new counsel. Appellant claimed that the
attorney's fees lien entitled it to retain possession of the file and that the trial court erred
in its order to the contrary. In affirming the order of the trial court, the court found that,

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under state law, appellant had a common law retaining lien which attached to all property
of plaintiff. However, the court also found that this lien was a passive one which was not
enforceable through legal proceedings. The court found that, although the lien entitled
appellant to retain plaintiff's file, this right terminated upon appellant's withdrawal from
the case. For our client’s case, his former attorneys are not allowed to retain and hold his
files even though the remaining balance has not been paid. The Supreme Court
emphasized the statue by stating “the value or effectiveness of the attorney's common law
retaining lien is not the value of the property itself. Rather, the effectiveness of the lien is
proportionate to the inconvenience of the client in being denied access to his property.
The focal point is not upon the objective worth of the property, but upon its subjective
worth to the client and those who represent him. If the property loses this latter value, the
attorney's possession becomes meaningless, and his passive lien, to all effects, worthless.
Therefore, it is the inconvenience suffered by the client which determines the value of the
lien, and if the client or his representative considers the elimination of this inconvenience
to be as valuable as the amount of the attorney's charges, then the client will satisfy the
charges, the lien will dissolve, and the client's property will be returned. The nature of the
lien thus evokes the conclusion that the intrinsic value of the property is immaterial.
Brauer, Supra, 40 N.J. at 422-23 192 A.2d 831. In the case Steiner v Stein 141 N.J Eq.
478 58 A.2d 102, 104 (Ch.1948) in a dispute over billing, defendant attorney held a
retaining lien over complainant clients' personal property. Complainants filed a suit in
equity to recover certain papers that defendant attorney had retained. Defendant attorney
moved to dismiss. The chancery court denied defendant attorney's motion, holding that

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complainants did not need to demand a statement of defendant attorney's fees for services
rendered because there was sufficient conflict over the amount due. Furthermore,
complainants did not have an adequate remedy at law because the papers lacked a market
value. Moreover, because the amount due was unclear, the legal remedy of replevin was
unavailable. As such, the court granted complainants' request for an interlocutory order
compelling defendant attorney to surrender the documents, but complainants had to post
a surety bond to safeguard defendant attorney's interests. Although attorney may hold
client’s property under common-law retaining lien, property of client should be returned
when attorney withdraws so that client can continue with prosecution or defense of case,
conflict between former attorney, on one hand exercising common-law retaining lien and
client on the other hand demanding return of file, should not be allowed to delay
prosecution of underlying action. Delays in file transfer may prejudice our client’s matter
particularly if there is a statute of limitations period or court-imposed deadlines, in our
client’s case time is of the essence. If retention of the file continues it will adversely
affect our client’s ability to proceed with his legal matter, however, the Rules Of
Professional Conduct 1.16(d) states “Upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to protect a client’s interests, such as
giving reasonable notice to the client, allowing time for employment of other counsel,
surrendering papers and property to which the client is entitled and refunding any
advance payment of fee or expense that has not been earned or incurred. The lawyer may
retain papers relating to the client to the extent permitted by other law.” However to
avoid prejudice to the client upon termination of the representation trumps the lawyer’s

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right to assert a retaining lien. When determining whether or not to claim a retaining lien
to original documents, Girardi & Stanton should take into account: 1) whether the Mr.
Gibson will suffer serious consequences without the documents; 2) Mr. Gibson’s ability
(or lack thereof) to pay; 3) the fairness of the fee agreement or the client’s understanding
of it; and 4) whether any prejudice to the client can be mitigated by means other than a
return of the documents. Given the ethical limitations, a retaining lien should be asserted
only as a matter of last resort and only once Giradi &Stanton has sought other reasonable
means of collection of the unpaid fees. Girardi & Stanton are not permitted to use the lien
wantonly to injure Mr. Gibson, the Supreme Court’s Advisory Committee on
Professional Ethics has recognized that even if a law firm is not fully paid, the firm has
no justification for refusing to deliver to the client whatever the client was entitled to
receive.
Conclusion
Mr. Gibson and our firm are entitled to receive the files with everything which is
or was essential for the completion of our client’s case. Girardi & Stanton are required to
turn over photocopies of Mr. Gibson’s files immediately, despite existence of former
counsel’s lien for unpaid balance of its bill for legal services rendered to client, interests
of justice require that our case against Cerone Wholesale Sporting Goods go forward and
that critically important issues be resolved in timely manner because time is of the
essence for this case. Girardi & Stanton’s assertion of this retaining lien violates the
ethical code and rules governing professional conduct.