Lawyers have a common law right of lien over files to secure payment. The common law lien is different than the statutory lien available pursuant to sections 84 and 94 of the Law Society Act, 1996.  While a lawyer may assert a lien on a file, the court has the jurisdiction to order the file to be delivered to the client or to his or her new lawyer; section 93 of the Law Society Act, 1996. The court exercises its discretion to require a lawyer to surrender property over which a lien has been claimed in order to protect the client from injury.

 

A good overview of this topic can be found in the following material:

 

In considering whether or not to assert your common law lien right, consider the potential harm that delay in transferring the file or property might cause to the client. Bear in mind that the former client, or new lawyer, may apply to the court pursuant to subsection 93(1) of the Law Society Act, 1996 to have the client’s records delivered, and on terms established by the court. If the client has secured the services of another lawyer, try to work out an arrangement with that lawyer regarding any outstanding fees or disbursements. If the client has decided to self-represent, try to work out an arrangement with the client regarding outstanding fees. Where possible, try to avoid having the matter brought to court.

 

Note your obligation to take all reasonable steps to assist in the transfer of the client’s file; see rule 3.7-8 of the Code of Conduct. Before you transfer a file, make copies of the content, as you may be required to prove that a bill is fair and reasonable, and you will need a copy of your work product. In fact, you must retain a copy of core material to ensure that you have documents to defend yourself against future claims a client might make regarding the services you provided.