INTRODUCTION

A lien is a right to retain property belonging to a debtor until the debtor has discharged the debt
due to the creditor. An advocate’s lien is the right of a lawyer to hold a client’s property or
money until payment has been made for legal aid, advice and representation given.

It is a remedy available to advocates when the client’s fee remained unpaid. The remedy is
available as a statutory guarantee as well as in common law.

According to section 51 of the advocates act, a client is supposed to pay the advocate fees as
agreed and each party should bear its advocate fees regardless of whether the advocate has won
the case or not.

Halsbury laws of England define lien as:

“A right in one man to retain that which is in his possession belonging to another until certain
demands of the person in possession are satisfied.”

According to the case of John D Hope & Co. v Glendinning 1, A lien generally depends on the
fundamental principle that one party to a mutual contract cannot enforce performance of its
obligations in his own favor without giving or tendering performance of the obligations
incumbent upon himself.

Simply put, the legal notion of a lien as the right to resist a demand for performance of an
obligation until a counter obligation is performed by the person demanding.

TYPES OF LIEN

Under common law, there exist three types of lien

1. A specific/particular common law lien on property recovered or preserved by

the advocates efforts

2. A general passive or retaining lien

1
[1911] AC 419, 431
 3. Statutory Lien: The statutory lien is created by a charging order and is similar to
the particular lien

Common Law Lien/ Particular Lien

A particular lien is a lien upon specific property as security for the payment of a debt or the
satisfaction of some other obligation arising out of a transaction or agreement involving said
property.2

The common law lien is a particular lien and not a general lien and is therefore not available for
the general balance of account between the attorney and his client, but extends only to the costs
of recovering or preserving the property in suit.

This right is the right to ask the court to direct that personal property recovered under a
judgment obtained by his exertions stand as security for his costs of such recovery

General or Retaining Lien

This is the right of an advocate to retain property already in his possession until he is paid
costs due to him in his professional capacity.

The underlying policy on liens is that it would be unfair for a party to enjoy the result of an
advocate’s work without paying the advocate and then let the advocate seek payment elsewhere
when payment could be easily gathered through the lien.

Consequently, an advocate having a retaining lien over documents in his or her possession is
entitled to retain the documents against the client until the full amount of his costs is paid.

In the context of file transfers, the lawyer typically asserts his or her right to a general retaining
lien.

In Barrat v Gough Thomas3, it was stated that in so much however as the lien protects the
advocate, the general lien confers a right to only retain property. It exists for no other purpose. It

2
https://www.merriam-webster.com/dictionary/particular%20lien accessed on 25th May 25, 2017
3
[1950] 2 All ER 1048, 10563
is merely passive and the solicitor has no right of actively enforcing his demand. (he cannot, for
instance, sell the property or transfer it to himself.)

The general rule is that the retaining lien extends to any deed, paper or personal chattel which
has come into the advocate’s possession in the course of his employment and in his capacity
as solicitor with the client’s sanction and which is the client’s property

The following may therefore be subject to a retaining lien:

 bill of exchanges, cheques, policy of insurance, share certificates, application

for shares, letters patent, letters of administration, money, including money in
a client account, although only the amount due to the advocate ;
 Or documents in a drawer of which the solicitor is given the key

Statutory Lien

An advocate has a right by statute to apply to the court for a charging order on property
recovered or preserved through his instrumentality in respect of his taxed costs of the suit, matter
or proceeding prosecuted or defended by him. Section 52 of the Advocates Act provides for
charging orders. It states that:

“Any court in which an advocate has been employed to prosecute or defend any
suit or matter may at any time declare the advocate entitled to a charge on the
property recovered or preserved through his instrumentality for his taxed costs in
reference to that suit or matter, and may make orders for the taxation of the costs
and for raising money to pay or for paying the costs out of the property so charged
as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat,
that charge shall, except in the case of a conveyance to a bona fide purchaser for
value without notice, be void as against the advocate:
Provided that no order shall be made if the right to recover the costs is barred
by limitation.”

ENTITLEMENT TO LIEN
Advocate’s Entitlement to Lien

It is the duty of an advocate to represent their client up until the determination of a case. Once
this happens, an advocate has the right to be paid the requisite fees for the assistance that they
have offered. The rationale behind this is that one cannot be allowed to enjoy the outcome of an
advocate’s work without paying them. Failure to pay an advocate results in the concept of
advocate’s lien. Thus when an advocate is claiming for unpaid fees they are allowed to exercise
their right of lien. A lien is generally expected to protect an advocate.

Subject Matter Advocates’ Lien

In exercising their right of lien, it is important that advocates are aware of what property they can
exercise lien over. An advocate can exercise this right to:-

a) Original documents in their possession.

b) Clients’ account.

The right of lien will be exercised until all costs due to the client are paid. Once a client has paid,
the advocate is required to release any documents or property to them. This was held in Barrat –
v- Gough Thomas4. Once the Advocates’ taxable costs, charges and expenses are paid the client
is no doubt entitled to an order for the delivery up of the retained documents

In the case of Harun T/A Nelson Harun & Co. Advocates, Onguto, J stated: “There is no doubt
that this case raises sharply the question as to the nature and extent of an advocate’s lien. In its
simplest application a lien generally depends on “the fundamental principle that one party to a
mutual contract cannot enforce performance of its obligations in his favour without giving or
tendering performance of the obligations incumbent upon himself”.

The policy underlying liens briefly puts it that it would be unfair for a party to enjoy the result of
an advocate’s work without paying the advocate and then let the advocate seek payment
elsewhere when payment could be easily gathered through the lien. Consequently, the advocate
having a retaining lien over documents in his possession is entitled to retain the documents
against the client until the full amount of his costs is paid...Provided that the costs in question
have been incurred, the existence of the lien arguably does not rest upon a bill having been

4
ibid
rendered to the client...In so much however as the lien protects the advocate, the general lien
confers only a right to retain the property. It exists for no other purpose...It does cease when the
advocate receives payment. It also will exist only when the referable relationship is one of
advocate and client so that if at the date of demand the relationship is not so referable the
advocate will lose whatever entitlement to a lien he or she may have enjoyed...where there was a
change in the character of the solicitor’s possession of the deeds of title from possession as
solicitor to and on behalf of the original client (mortgagor) to possession as solicitor to and on
behalf of a different client (mortgagee). The lien will also be ousted and lost where it is expressly
excluded by agreement between Advocate and client...It is also lost where the client who
delivered the documents or chattels has a lesser right than a third party...The basis for this
proposition being perhaps that an advocate cannot claim a lien on documents where her or his
client would not be entitled to withhold the documents against a third party...Effectively that
would also mean that if the third party has no higher right to claim the documents than the client
then the third party’s claim is subject to the lien...an advocate cannot have a better title than his
client.”

LIMITATIONS TO LIEN

a) Where documents are delivered to a lawyer for a particular purpose under a special
agreement which does not make express provision for a lien in favour of the solicitor
b) Where money is paid to the lawyer for a particular purpose so that he becomes trustee of
the money as provided under section 80 that any person who, being an advocate, is
entrusted in his professional capacity with any money, valuable security or other property
to retain it in safe custody with instructions to pay or apply it for any purpose in
connection with his duty as an advocate fails to pay, apply or account for the same after
due completion of the purpose for which it was given, shall be guilty of an offence:
Provided that no prosecution for an offence under this section shall be instituted unless a
report has been made to the Attorney-General by the Tribunal under subsection (3) of
section 61 of the Advocates Act
c) No lien arises over those documents or that money unless subsequently left in the
lawyer’s possession for general purposes. In Acad. of Cal. Optometrists, Inc. v. Superior
 Court5, the court had to decide whether an Attorney can assert a contractual “retaining
lien” upon files and papers of no monetary value given to him by his client or
accumulated during his employment by which he is entitled to possession of such
documents until his fee is paid… court held that to condone lien would be a violation of
foregoing ethical duties owed by a lawyer to his client contrary to public policy and
contracts which violate the canons of professional ethics of an attorney may for that
reason be void. Court further stated that where the subject matter of an attorney’s
retaining lien is of no economic value to him but is used only to extort disputed fees from
his client, the lien is void.

Lien should be limited because:

a) The lien enforces a lawyer's "right to damage his client's cause.., unless the client pays
him the disputed fees in full and foregoes his right to honestly litigate the dispute."
b) It inflicts a disproportionate harm to the client when less harmful remedies are available.
Inflicting disproportionate harm on the client is not an unwanted by-product of the lien-it
is precisely the way the lien is meant to work
c) The lawyer usually has no use for impounded documents, and is forbidden to use
impounded funds during the fee dispute.
d) The benefit the lawyer obtains from the lien is the ability to harm the client until the
client settles the fee dispute and settlement is most likely to occur when the client faces
harm from the lien that is greater than the fee in dispute.

5
124 Cal. Rptr. 668, 672 (Ct. App. 1975).