Dear PAO,
I am about to engage the services of a private lawyer. We agreed that the legal fees will be paid after the resolution of the case. The lawyer explained that while he is not asking for any legal fees at the moment, he will be exercising his right to a “retaining lien” when the time comes. What is a retaining lien?
Muchova
Dear Muchova,
The concept of retaining lien was explained by the Supreme Court in the landmark case of De Caiña et al., vs. Honorable Victoriano, et al., G.R. No. L-12905, February 26, 1959, Ponente: Associate Justice Felix Angelo Bautista, viz.:
“The retaining lien is the right of the attorney to retain the funds, documents, and papers of his client which have lawfully come into his possession until his lawful fees and disbursements have been paid and to apply such funds to the satisfaction thereof.”
This ruling was recently strengthened by the formulation of A.M. No. 22-09-01-SC or the Code of Professional Responsibility and Accountability (CPRA), issued by the Supreme Court on 11 April 2023. Section 56, Canon III of the CPRA provides that:
“SECTION 56. Accounting and Turn Over upon Termination of Engagement. — A lawyer who is discharged from or terminates the engagement shall, subject to an attorney's lien, immediately render a full account of and turn over all documents, evidence, funds, and properties belonging to the client.
“The lawyer shall cooperate with the chosen successor in the orderly transfer of the legal matter, including all information necessary for the efficient handling of the client's representation.
“A lawyer shall have a lien upon the funds, documents, and papers of the client which have lawfully come into his or her possession and may retain the same until the fair and reasonable fees and disbursements have been paid, and may apply such fund to the satisfaction thereof.” In Shumali vs. Atty. Agustin, A.C. No. 13789 (Formerly CBD. Case No. 19-6041), November 29, 2023, Ponente: Associate Justice Henry Paul B. Inting, the Supreme Court further elaborated the elements for the proper exercise of one’s retaining lien, saying:
“For a proper exercise of one's retaining lien, the lawyer must establish the following elements: “(1) lawyer-client relationship; (2) lawful possession of the client's funds, documents and papers; and (3) unsatisfied claim for attorney's fees.”
Taken all together, retaining lien refers to the right of a lawyer to retain or withhold the funds, documents, and papers of the client/s that have lawfully come into his/her possession until his/her legal fees have been paid accordingly. Although lawyering is not primarily meant to be a money-making venture, retaining lien is recognized by the CPRA in order to ensure that members of the legal profession are able to economically sustain themselves while protecting the rights of their clients.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
