Part I: An Attorney’s Right of Lien – An Ethical and Legal conundrum

This is the first part of a two-part-long write-up. The second part, titled ‘Upon analysis, where do we stand? can be found here.

Back in the days of yore, it was Blackstone who famously said, “A counsel can maintain no action for his fees, which are given not as a salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation”[1]. Today, circumstances have changed, and every attorney as a matter of right can demand all payment which is rightfully hers.

This right is generally protected under law. Liens are generally categorized into two – general liens (retaining liens or possessory liens) and special liens (charging liens). In the former, attorneys are permitted to retain papers, documents, money, securities and other property of the client that they obtain lawfully and in professional capacity as a sort of security, as a form of compensation for the services rendered[2]. The latter merely confers the right of an attorney to obtain a charge upon a judgment, award or decree obtained by him for his client. It is more connected with costs and other things received connected to the litigation, through the judgement[3].

Right from the Roman period down to Napoleon’s reign, the fundamental idea of a lien has been in existence[4]. However, the exact concept of an attorney’s lien, as we understand it today, was recognized in the case of Cohen v Goldberger, which involved a dispute between present partners and a previous partner in a partnership firm and a creditor of the firm[5]. The Court stated as per the laws of equity that, an attorney through her right known as a lien “must be paid her fee out of the judgement which she has obtained, as there is an assumption that it is was her skill that was crucial to getting such a judgement declared in the first place”[6]. There does not have to be any express agreement that states the same.

Yet another type of lien is called the right of offset, which had its humble origins in the Common law[7].  In this type of lien, an attorney can apply all the funds received by the client so far to settle the general balance of compensation as due to her. In the case of Diehl v Friester, the Court held that “a proposition to set off one judgement against another is an appeal to the equitable power of the Court which can be granted or refused based on the facts of each case”[8]. Here, an attorney shall have a right to be paid her fee but not of a specific lien which is protected only under some cases[9].

In many jurisdictions, an attorney’s lien is considered to be a powerful legal remedy as it allows the attorney to receive his dues without any expensive Court intervention[10]. It is seen as a justified means of putting pressure on the debtor[11]. There have been instances where Courts have granted the right to attorneys to take three-tenths or one-tenth of the amount recovered from a judgement as lien[12].

In India, Section 171 of the Indian Contract Act provides that attorneys, unlike other persons, can retain as security for a general balance of account, any goods bailed to them, in the absence of a contract to the contrary[13]. In previous decisions such as Tyabji Dayabhai & Co. vs. Jetha Devji & Co[14], the law relating to lien as laid down in England was followed. In Naryandas Sundarlal Rathi v. Narayandas Harbhagal[15], the Bombay High Court once again protected the solicitor by allowing him to claim lien upon the funds, money and property received for his client as well as a general lien over papers and documents. It was only in the year 2000, that the Supreme Court took a stand on this issue. Despite this provision, the Court held in R.D Saxena v Balram Prasad Sharma[16] that “an advocate keeping the files of a client cannot amount to ‘goods’ bailed.” According to the Court, “such files do not fall under the meaning of ‘goods’ under the Sale of Goods Act, 1930”. “In the case of litigation papers in the hands of the advocate, there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of. There is no scope for converting the case files into money, nor can they be sold to any third party”[17].

The Court pertinently pointed out that “in the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation”[18]. The position in India is clear. No advocate can retain Court documents of his client for unpaid remuneration as this will seriously impede the system of justice delivery.

In England, a solicitor or attorney has possessory and charging liens as a right to compensation. The former extends to all money that has come into his possession, documents received in his professional capacity and fee for professional services. It does not extend to money received for a specific purpose, public records, testamentary documents or papers acquired during the liquidation of a company[19]. Such a lien does not extend to strangers who are in need of the particular papers and an attorney under such circumstances, must surrender them[20].

This idea of an attorney being able to charge a lien is seen as a sort of compensation for her services performed on the proceeds which the client receives from the judgement[21]. Even today, (although more prominent in the past) there exist numerous statues and legislations that protect such a right of an attorney’s lien. In the United States, although Federal Courts do not recognize this right, there are State laws that do[22]. These statutes allow any member of the legal profession to have possessory and charging liens. However, the possessory liens only extend to legal documents and money that come into the attorney’s hands and not to wills, public records or money received for a specific purpose[23].

In the case of Mooney v Lloyd, Chief Justice Tilghman of the Supreme Court of Pennsylvania, refused to permit the attorney to maintain his action for fees by stating that “no such action existed under the Common law”[24].  But this very statement has later been ignored by several Courts across the country (in Pennsylvania, for example, there still exists no protection of this right) when they uniformly recognised this right of an attorney. In fact, they even allowed the attorney to be able to retain property that has come into her hands ‘during the course of employment’[25]. The attorney may retain as well as sue in order to protect her right. Scholars in support of this right argue that it exists for the ultimate benefit of the client himself. Why? When such a law exists, attorneys now know that it is less likely that the client will walk away with all the benefits in the end, and will therefore put in all their time and efforts into the case, without fearing any ugly consequences[26].

The view in support of this right seems to be that, as long as such a right of lien of an attorney falls within the purview of statute and can be accurately defined and pointed out, no attorney must be prevented from enjoying the fruits of the judgement in terms of compensation or costs. But Courts have taken deviations and this is clearly seen in the decision of Dessau v. Peters. In this case, a solicitor who was wrongfully discharged from his employment in a partnership firm, retained all the firm’s papers that were in hands, as lien[27]. When his former employer compelled him to turn them in, the Court agreed and said that despite such a right, he had to return the papers to his successor in the firm[28].

It therefore becomes clear that the question as to whether the right of an attorney’s lien must be provided for, has received quite imprecise and opposing responses. Before an attempt is made to answer this question, let us look at some differing opinions regarding the basis of a lien.


[2] George v. Walton, 306, 43 N. E. 515 (1942).

[3] F. D. Hall, Attorney’s Charging Lien, 4 U. of Fla. L. R. 58 (1951).

[4] Mitzi Wiese, Liens: A Closer Look at some Conceptual Foundations, 44 CILSA 80, 81 (2011).

[5] Cohen v Goldberger, 109 Ohio State 22 (1923).

[6] Id.

[7] G. F. Stevens, Our Inadequate Attorney’s Lien Statutes-A Suggestion, 31 Wash. L. R. 1, 2 (1956).

[8] Diehl v. Friester, 37 Ohio State 473 (1882).

[9] Id.

[10] supra note 4, at 80.


[12] Arthur F. Lustig, Attorney ‘s Liens, 7 Clev. St. L. Rev. 502, 507(1958).

[13] Section 171, Indian Contract Act, 1872, No.9, Acts of Parliament, 1872 (India).

[14] Tyabji Dayabhai & Co. vs. Jetha Devji & Co., AIR 1927 Bombay 542 (India).

[15] Naryandas Sundarlal Rathi v. Narayandas Harbhagal , AIR 1932 Bombay 363 (India).

[16] R.D Saxena v Balram Prasad Sharma , AIR 2000 SC 3049 (India).

[17] Id.

[18] Id.

[19] University of Pennsylvania, Attorney’s Lien & Right of Action for Compensation Source, 48 U. Pa. L. Rev. 642, 643 (1909).

[20] Id.

[21] Read v. Dupper, 6 T. R. 36I (1795).

[22] Raoul Berger, The Attorney’s Lien in Federal Courts: A Protection That Is Long Overdue, 39 ABAJ 131, 131 (1953).

[23] supra note 19.

[24] Mooney v Lloyd, 45 S. & R. 412 (1819).

[25]Arthur Littleton, The Unconstitutionality of the Attorney’s Lien Law in Pennsylvania, 68(3) U. Pa. L. Rev. 277, 277 (1920).

[26] Id. at 280.

[27]Harvard Law Review Association, Attorney’s Lien: Compelling Discharged Attorney to Give up Papers Temporarily, 35(7) Harv. L. Rev. 885, 885 (1922).

[28] Id.


Ashna D

Ashna photo

Ashna D is a third-year law undergraduate at the National University of Advanced Legal Studies (NUALS), Kochi. She is passionate about criminal law, human rights law, and family law, and writes mostly at the intersection of law and social issues.

2 responses to “Part I: An Attorney’s Right of Lien – An Ethical and Legal conundrum”

  1. […] This is the second part of a two-part-long write-up. The second part, titled ‘An Attorney’s Right of Lien – An Ethical and Legal Conundrum‘ can be found here. […]


  2. There is definitely a lot to learn about this issue. I like all of the points you made. Family lawyers Toronto


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