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.
A 1950 English case, Barratt v. Gough-Thomas, cited at 2 All ER 1048, and followed in Canada (in White Resource Management Ltd. v. Durish 1997 154 DLR 4th 158, used these words:
“The nature of a solicitor's general retaining lien has more than once been authoritatively stated. 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.”
From Re Motherwell (1927) 62 DLR 130 (Ontario Supreme Court):
“The right of a solicitor to a lien on the documents of his client which come to his hands in the course of his employment is a well recognised right, and one which ... is for the benefit of clients as it often enables or induces solicitors to carry on proceedings for the client which they might otherwise be unwilling to do; but it is a right which is subject to certain qualifications.
“The right of a solicitor in documents in his possession cannot exceed that of his client, and if third persons have a joint interest in them, or for any other cause have a right to call on the client to produce them, the lien of the solicitor cannot debar them of that right.
“The solicitor's lien creates no charge upon the property, if any, to which the documents relate, it is not like an equitable mortgage by deposit; the lien is merely a passive right of retainer, and cannot be actively enforced as in the case of other liens. So long as it exists it has been held that the solicitor can withhold the documents from inspection by his client, or anyone claiming under him; although it has been held that the client can by subpoena duces tecum served on the solicitor compel him as a witness to produce them in evidence in support of the client's case.”
Few, if any other profession has this right and it has led to a scattering of protests from members of the public who, rightfully disinclined to pay a lawyer’s bill for shoddy service, or otherwise seeking to challenge same, find themselves coerced into payment, albeit under protest, merely to get the return of their documents so they can continue the litigation with another lawyer or by themselves.
It also discourages litigants to initially hand over original documents to their lawyers.