National Sales & Service Co., Inc. v. Alper

In National Sales & Service Co., Inc. v. Alper, 136 Ariz. 544, 667 P.2d 738 (Ariz. 1983), a dispute arose between the client's former and successor attorneys concerning the right to possession of the client's "files," including certain corporate books and records. On the validity of the former attorneys' asserted retaining lien, and relying on the Arizona Code of Professional Responsibility, the Restatement of Laws, Securities, and the Restatement of Laws, Second, Agency 2d, the Arizona Supreme Court held an attorney's retaining lien must yield where the assertion of a lien is inconsistent with the attorney's duties to and rights of the client: Because of the broad range of tasks a lawyer might undertake for a client, there can be no question that some of a lawyer's duties can be inconsistent with the assertion of his lien rights. It is our task, therefore, to examine this case for circumstances such as duties imposed by the Code of Professional Responsibility which limit the nature and extent of the attorney's retaining lien. The extreme limits of the reach of the lien are obvious. For example, we believe it is proper for the lien to apply to the lawyer's, and his staff's, research notes and internal memoranda concerning the case. This kind of paper work, the work product of the lawyer's efforts, is clearly the lawyer's property and remains his property at least until he is paid. On the other hand, we believe it is improper for the lien to attach to a document given by the client to the lawyer for a purpose inconsistent with the fixing of a lien upon it. If, for example, a client brings an original document or instrument to a lawyer for delivery to another, then the client's purpose is inconsistent with the fixing of a lien upon the document or instrument. (Citation omitted.) Likewise, if a client brings some book, document or other chattel to his lawyer for use as an exhibit at an impending trial, the client's purpose is inconsistent with the fixing of a lien upon the document. In either of the above cases the lawyer's duty to seek his client's lawful objectives and to avoid prejudice or damage to his client are inconsistent with his assertion of a retaining lien. (Alper, 667 P.2d at 740.)