Queensland Law Society

What if I have a lien but am offered some form of security for my unpaid costs?

In certain circumstances you will have to hand over the documents.

Rule 15 of the Australian Solicitors Conduct Rules 2012 ('ASCR') states:

15. Lien over essential documents

15.1 Notwithstanding Rule 14, when a solicitor claims to exercise a lien for unpaid legal costs over client documents which are essential to the client’s defence or prosecution of current proceedings:

15.1.1 if another solicitor is acting for the client, the first solicitor must surrender the documents to the second solicitor:

  1. if the second solicitor undertakes to hold the documents subject to the lien and with reasonable security for the unpaid costs; or
  2. if the first solicitor agrees to the second solicitor agreeing to pay, or entering into an agreement with the client to procure payment of, the first solicitor’s costs upon completion of the relevant proceedings.

15.1.2 alternatively, the solicitor, upon receiving reasonable security for the unpaid costs, must deliver the documents to the client.

Rule 14 simply says that on completion or termination of your engagement you have to give your client or former client any client documents on request unless you have an effective lien.

“Client documents” is defined in the Glossary of Terms at the end of the ASCR as “documents to which a client is entitled”. Of course which documents on your file belong to the client and which belong to you is a matter of common law. See Mine or yours? Who owns what on a client file? by Stafford Shepherd, Proctor November 2011 pp.42-43.

In any event, the court has a discretion to order you to hand over a file - see He who terminates is lost by Gary Coveney and Lex Macgillivray, Proctor August 2008 pp.51-52. This article provides a summary of the case Stark v Dennett [2007] QSC 171 and also describes the position under the former Solicitors Rule 2007 (repealed on 1 June 2012).

The article refers to the NSW Law Society Tri-partite Deed. There is no equivalent QLS document.