Professional ethics

May 21, 2024

Ochiel Dudley

Lien (slide 540)

Common law principle.

Definition: An extraordinary right granted to lawyers and attorneys, to retain a client’s property
deposited with them, including crucial and original documents, until his/her bill for services and
expenses has been paid. See Barrat v. Clough Thomas 1951 2 ALL ER 1048; White Resource
Management Ltd. v. Durish 1997 154 DLR 4th 158.

An advocate’s (a solicitors ) lien is thus 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.

This constitutes one of the remedies of a lawyer to which he/she can resort to when the client’s
fee remained unpaid

Law

a) S 47, 48, 52, 80 Advocates Act

b) Rule 7 advocates practice rules

c) Hasham Jiva vs. Esmail Service Station 1977 KLR 17

d) Barrat v. Clough Thomas 1951 2 ALL ER 1048

e) White Resource Management Ltd. v. Durish 1997 1 158

f) Metrin Mechanical Contractors Ltd. v. Big H. Constr [2001] O.J. No. 1319 (Ontario.
S.C.J. Canada)

g) Acad. of Cal. Optometrists, Inc. v. Superior Court, 1 Rptr. 668, 672 (Ct. App. 1975).

h) Dr Saxena’s case AIR 2000 SC 3049

Readings

 Priyasha Corrie : Advocate’s Lien: A Critica of the stance in India

  Jacqueline Morris and Felicia S. Folk Gett Asserting and Defending a Solicitor's Lien

 Felicia S. Folk : Charging Liens 2005 update

 John Leubsdorf : Against Lawyer Retaining L

 Jacqueline Morris Felicia Fox & anor : Who it anyway

 Thomas Hurley: Solicitors Lien

Onguto decision

Nature

1. It is a concurrent right

2. It is based on an implied agreement

3. It is passive

It is a right at common law depending, it has been said, on implied agreement.

"It has not the character of an encumbrance or equitable charge. It is merely passive and
possessory, that is to say, the solicitor has no right of actively enforcing his demand. It
confers on him merely the right to withhold possession of the documents or other
personal property of his client or former client." See Barratt v. Gough-Thomas, 1951 2
All ER 1048,

4. It is a possessory right not proprietary i.e. lien is destroyed with destruction of property or
returning to client

5. It accrues at the termination of a retainer

6. It is a security for payment of fees and expenses

7. There are various types of liens

8. It can be subordinated to the overriding interests of justice. Courts can also order the
release of documents held pursuant to a lien.

9.

SOPPEC Par. 57 duty of advocate to deliver all documents to client subject to any lien.
Lien cannot arise where bill has not been taxed. - Kivindyo v Nzioki Mutua & Associates
(Miscellaneous Application E074 of 2020) [2023] KEHC 21798 (KLR) (Family) (18 July
2023) (Ruling) b4 Nyaundi J.

Under common law, there exist three types of lien

1. A GENERAL passive or retaining lien;

• This is termed as a general lien.

• It is passive

• This right is a right to retain property already in his possession until he is paid costs
due to him in his professional capacity.

• In the context of file transfers, the lawyer is asserting his or her right to a general retaining
lien.

• 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 thus 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

• The general retaining lien is the solicitor’s right to retain client property already in the
solicitor’s possession until he or she is paid costs due to him or her in a professional capacity.

• In the context of file transfers, the lawyer is asserting his or her right to a general retaining
lien

2. A SPECIFIC/PARTICULAR common law lien on property recovered or preserved

by the advocates efforts
 The ‘particular lien’ or ‘special lien on the fruits of the action’, is the solicitor’s right to
ask the court to direct that personal property recovered under a judgment and obtained
through the solicitor’s exertions stand as security for the solicitor’s costs
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.
The 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

3. A STATUTORY LIEN ENFORCEABLE BY A CHARGING ORDER.

A solicitor has by statute a right 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
See section 52 Advocates Act for the statutory equivalent in Kenya

When it ends

1. Waiver
2. Loss of possession
3. Payment.

How to enforce lien

S.47,48,52 Adv Act

Exceptions

a. Sec 80 of advocates act - if money is paid for a particular purpose which makes the
advocate a trustee
•No lien arises over those documents or that money unless subsequently left in the
lawyer’s possession for general purposes.
b. No lien attaches to original court records nor to money that the solicitor holds in the
capacity of stakeholder.
  E.g India on Litigation documents see Dr Saxena’s AIR 2000 SC 3049 the court found
that “No lien on litigation files! Files are not goods; The action contravenes the
constitutional right to counsel; It is not specifically provided for by the relevant act;
There are other remedies; It can lead to misconduct”
c. Documents 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.

d.

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