Divorces are highly emotional. People are breaking their sworn bond with their spouse. So, firing a divorce lawyer is no big deal when you’re in the process of firing your spouse through a divorce.
You entered into a contract with that divorce lawyer and while you have fired your divorce lawyer, you may still have obligations under that contract. Specifically, you probably owe your divorce lawyer some money.
Illinois divorce law has provided your divorce lawyer with the capacity to collect what is owed to him or her through the divorce court directly or the collections courts. After firing, the divorce lawyer may demand payment in exchange for turning over their former clients’ file. Can a divorce lawyer not release their former client’s file in Illinois? Can a divorce lawyer withhold their former client’s file until they’ve been paid in full?
Illinois Lawyers Are Supposed To Surrender Their Client’s Files.
“Every lawyer is responsible for observance of the Rules of Professional Conduct.” Illinois Rules of Professional Conduct Preamble (2010).
Lawyers must keep complete files that show how they spent the client’s money (which means they must keep everything).
“Maintenance of complete records of client trust accounts shall require that a lawyer:
maintain copies of all accountings to clients or third persons showing the disbursement of funds to them or on their behalf, along with copies of those portions of clients’ files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them;” Ill. Sup. Ct. R. 1.15(a)(3)
The Illinois Rules Of Professional Conduct require that lawyers turn over any information (like a file) if requested by their client.
“A lawyer shall…promptly comply with reasonable requests for information” Ill. Sup. Ct. R. 1.4
If a lawyer is fired, that lawyer must “surrender papers and property to which the client is entitled.”
“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, all owing 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.” Ill. Sup. Ct. R. 1.16(d)
But, is a client entitled to their file from their attorney if the client has not paid their bill in full?
Not if the lawyer files a lien against the file.
Attorney Liens And Case Files In Illinois
A lien is “[a] qualified right of property which a creditor has in or over specific property of his debtor, as security for the debt or charge or for performance of some act.” Black’s Law Dictionary (10th ed. 2014)
The lawyer did the legal work. The property with the lien against it is the attorney’s file…which is the attorney’s work product.
“Attorneys at law shall have a lien upon all claims … which may be placed in their hands for suit or collection … for the amount of any fee which may have been agreed upon by and between such attorneys and their clients ….” 770 ILCS 5/1
The attorney must perfect the lien by giving their client notice that they are claiming the lien on the file.
“To enforce such lien, such attorneys shall serve notice in writing, which service may be made by registered or certified mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action.” 770 ILCS 5/1
Normally, this applies to attorneys who work on contingency fees. Otherwise, an attorney for a personal injury case can work for years, get fired and then not receive anything for their efforts when the new attorney settles based on evidence the fired attorney uncovers.
“A lawyer shall not enter into an arrangement for, charge, or collect:(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof” Ill. Sup. Ct. R. 1.5
Whether the fee is contingent or not, a lawyer is owed their money…and is in possession of their client’s file.
“Under Illinois law, when an attorney-client relationship terminates for a reason other than professional misconduct and the attorney has a claim against the client for unpaid fees and expenses, the attorney may assert a retaining lien in furtherance of her right to compensation. The retaining lien is a common-law lien that attaches to documents or other property that come into the attorney’s possession in the course of her professional relationship with the client… The reach of the lien extends to the client’s file…. As its name suggests, the retaining lien permits the attorney to retain the file in her possession until such time as the client has either satisfied her claim for fees and expenses or supplied security adequate to protect the attorney’s interest.” Johnson v. Cherry, 422 F. 3d 540 – Court of Appeals, 7th Circuit 2005 (Citations Omitted)
A “retaining lien is a passive lien that the attorney cannot foreclose upon or otherwise use offensively to wrest payment from his client. The lien, however, can be asserted defensively when the client demands production of her file. And the possessory right it confers effectively enables the lawyer to hold the client’s property hostage until fees are paid. The retaining lien thus gives the attorney significant leverage in his demand for compensation.” Johnson v. Cherry, 422 F. 3d 540 – Court of Appeals, 7th Circuit 2005 (Citations and Quotations Omitted)
Wait, these are Federal cases? What does Federal case law have to do with Illinois family law, which is determined at the state level?
“It is well settled that federal decisions are not binding on Illinois state courts. Despite the nonbinding nature of federal decisions, they can be considered to be persuasive authority, and they may be followed if the state court believes the federal analysis to be reasonable and logical.” Werderman v. Liberty Ventures, LLC, 857 NE 2d 320 – Ill: Appellate Court, 2nd Dist. 2006 (Citations Omitted)
When Does A Divorce Lawyer Who Is Owed Money Have To Return Their Client’s File In Illinois?
A divorce lawyer can hold onto his client’s file until the client proves that they need the file.
“The possessory right conferred on the attorney by the retaining lien is not unbounded, however. Under certain circumstances, an unpaid attorney’s right to hold on to his former client’s documents may yield when the client or a third party demonstrates a need for access to those documents.” Johnson v. Cherry, 422 F. 3d 540
This feels pretty easy to prove. If the legal work product was so good that the lawyer demands payment for that legal work…it must be necessary to the case.
Why Don’t Divorce Lawyers In Illinois Hold Case Files More Often?
Divorce lawyers don’t hold case files hostage until payment is because they don’t look up federal case law that interprets Illinois law like I just did with Johnson vs. Cherry above (Hat Tip to Gary Schlesinger for bringing this to my attention, though).
But, the real reason divorce lawyers don’t put attorney’s liens on case files is because we don’t have to. Illinois divorce lawyers can sue their clients in the very same court that divorced the clients.
“The court may order that the award of attorney’s fees and costs (including an interim or contribution award) shall be paid directly to the attorney, who may enforce the order in his or her name, or that it shall be paid to the appropriate party.” 750 ILCS 5/508(a)
Additionally, the statute enshrines “the right of any counsel (or former counsel) of record to petition a court for an award and judgment for final fees and costs during the pendency of a proceeding under this Act.” 750 ILCS 5/508(a)
The debt of a client to a divorce lawyer is a marital debt as all the work happened before the divorce was finalized. Marital debts are divisible in the final Marital Settlement Agreement. Therefore, judgments on this debt will not be resolved until the Marital Settlement Agreement is entered. Some Marital Settlement Agreements allocate the specific amounts owed to former attorneys…but most don’t and leave it to later litigation to decide.
So, this final judgment for attorneys’ fees through a former lawyer’s petition against their former client will usually happen after the divorce case is over. A divorce may not finalize for months or years after the work was done.
Divorce lawyers who won’t wait to be paid may be inclined to hold their former clients file until a court orders them to do otherwise. Of course, a court will also be likely to order that this marital debt of unpaid attorneys’ fees be paid when the court also orders the release of the former clients file.
Withholding a case file from a divorce client may feel unseemly. However, this whole issue begs the question “would you want to hire a divorce lawyer to zealously pursue your case against you spouse…if they weren’t willing to zealously pursue their fees against you?”
If you want to get paid by your spouse (or avoid paying your spouse)…pay your divorce attorney. To talk to this divorce attorney, contact my Chicago, Illinois family law firm to discuss the abstract (the law) and the concrete (money).