• internal administrative materials such as conflicts checks, work assignments,
personal notes and assessments or impressions of clients;
• drafts of documents and legal instruments;
• unexecuted documents;
• consultations regarding malpractice or ethics; or
• internal legal memoranda and research materials.
The above are representative but non-exclusive lists, because, depending on the
underlying facts in a particular matter, the overarching duty under Rule 4-1.16 to take steps
“reasonably practicable to protect the client’s interests” and prevent harm might necessitate
providing the client with some types of materials that would ordinarily not be required. For
example, under certain circumstances, a lawyer may have to provide unexecuted documents or
the draft of a document. ABA Formal Opinion 471.
Although a lawyer does not have to bear the expense of copying the file, the cost of
reproduction or other means of access should be reasonable and reflect the actual costs incurred.
Florida Ethics Opinion 06-1 (files stored electronically should be easily reproducible and a
lawyer may charge reasonable copy charges for reproducing copies of documents). See e.g., The
Florida Bar v. Dorta, 794 So.2d 606 (Fla. 2001) (Table) (Consent judgment for 30 day
suspension for a lawyer who charged improper $250 administrative fee for opening file, and
charged client arbitrary set fees for faxing, long distance, and courier charges without any
relationship to costs actually incurred).
Additionally, a lawyer may charge a reasonable amount for the cost of retrieving and
delivering file materials to a client. Michigan Ethics Opinion R-019 (2000). It is advisable that
these costs and the method used to determine these costs be included in the original written
representation agreement with the client.
In appropriate situations, however, a lawyer is entitled to refuse to provide copies of
material in the file and instead may assert an attorney’s lien. Such situations include a client’s
refusal to reimburse a discharged lawyer for the lawyer’s incurred costs or to provide a
reasonable guarantee to the lawyer that the costs will be repaid at the conclusion of the case. See
Florida Ethics Opinion 71-57. While in such a situation it may be ethically permissible for a
lawyer to assert a lien with respect to materials in a case file, the validity and extent of the lien is
a question of law to be decided by the courts.
Florida common law recognizes two types of attorney’s liens: the charging lien and the
retaining lien. The charging lien may be asserted when a client owes the lawyer for fees or costs
in connection with a specific matter in which a suit has been filed. To impose a charging lien,
the lawyer must show: (1) a contract between lawyer and client; (2) an understanding for
payment of attorney’s fees out of the recovery; (3) either an avoidance of payment or a dispute
regarding the amount of fees; and (4) timely notice. Daniel Mones, P.A. v. Smith, 486 So.2d 559,
561 (Fla. 1986). The lawyer should give timely notice of the asserted charging lien by either
filing a notice of lien or otherwise pursuing the lien in the underlying suit. The latter approach is
preferred.