When convicted defendant files mandamus petition seeking materials from file, trial court must order response from trial counsel before ruling on petition.  [Added 4/20/10]

    Convicted Defendant petitioned the trial court for a writ of mandamus, seeking to compel his trial counsel to respond to his request for copies of materials from his file.  The trial court denied the petition without getting any response from trial counsel.

    The Second DCA reversed and remanded.  For 2 reasons the appeals court was "not convinced" that the trial court could have properly denied the petition without obtaining a response from trial counsel.  "First, because [Defendant] asked his former attorney to return the papers belonging to him, there is no way for the trial court to know whether counsel has such papers from a review of the court file."  Defendant also asked for documents other than those he provided to trial counsel and transcripts prepared at public expense, pursuant to Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004).  Regarding those, the court stated "[a]lthough [Defendant] may not have the financial wherewithal to purchase copies of the documents in the possession of his former attorney, there is no way for him to obtain these records unless the court-appointed attorney responds to the correspondence, informing him of the documents available and the cost of reproducing them."

    The court concluded:  "[W]hen the defendant files a petition for mandamus, the trial court should order a response from the attorney to determine what, if anything, must be provided to the defendant and likewise to determine what is available if the defendant wishes to purchase a copy."  Raymond v. State, 31 So.3d 946 (Fla. 2d DCA2010).

Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred.  [Added 4/1/10]

    Law Firm represented two condominium associations ("the Associations") in matters including collection and foreclosure cases.  When Law Firm's sole shareholder died, the Associations requested that Law Firm transfer all of the files relating to their matters to their new counsel.  Law Firm declined, instead filing a retaining lien and refusing to provide the Associations with a copy of their files "unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current."  The Associations moved for injunctive relief to obtain a copy of their files.  They argued that the collection and foreclosure matters were handled by Law Firm on a contingent fee basis and that, because the contingency (i.e., collection) had not occurred, Law Firm had no right to a retaining lien.  The trial court denied the Associations' motion.  They appealed.

    The Third DCA reversed.  The appellate court explained the nature of a retaining lien.  "A retaining lien differs from a charging lien.  A charging lien is placed on any monetary recovery due the client at the conclusion of the lawsuit.  Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60, 61 (Fla. 4th  DCA 1996); 7 Am. Jur. 2d Atty’s at Law § 324 (1980).  On the other hand, a retaining lien is a passive lien and rests entirely on the right of an attorney to retain possession of his client’s papers, money, securities, and files as security for payment of the fees and costs earned by the law firm to that point.  Wintter v. Fabber, 618 So.2d 375, 377 (Fla. 4th DCA 1993)."  The Associations recognized that a law firm ordinarily may assert a retaining lien over files until outstanding fees are paid or adequate security for payment has been posted.  There are, however, exceptions to a law firm's right to assert a retaining lien.  "The exceptions are where the client pays the fees due; the client furnishes adequate security for the payment which may be due or which is subsequently found to be due; there is a clear necessity in a criminal case and a defendant cannot post security; or a lawyer’s misconduct caused his withdrawal.  [Wintter, 618 So.2d at 377.]  An additional exception is in contingency fee cases where the contingency has not occurred.  See Fla. Bar Ethics Dep’t, Opinion 88-11 (Reconsideration) (1993) (holding that an attorney may not ethically assert a retaining lien for fees allegedly owed in a contingency fee case unless and until the contingency has occurred); Fla. Bar v. Doe, 550 So.2d 1111, 1112 (Fla. 1989)."

    Law Firm's fee agreement with the Associations was contingent:  it "did not bill for nor get paid for its services in collecting these delinquent fees unless and until it was successful in collecting the amount due from the unit owner."  Consequently, because the contingency had not occurred, Law Firm could not legally or ethically assert a retaining lien over the files.

    The court did note that "[i]f the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value  of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to."  (Emphasis in original; citations omitted.)  Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010).

Trial court erred in ordering lawyer to produce his file on separate, unrelated case in which he was representing same client.  [Added 4/1/10]

    Lawyer represented Client in a slip and fall case against Defendants.  Lawyer also represented client in a separate, unrelated auto accident case.  Defendants sought production of "'any and all non-privileged portions'" of Lawyer's file on Client in the auto accident case.  Lawyer objected on attorney-client privilege and work product privilege grounds.  Defendants sought an in camera inspection of the file.  "Without requiring [Defendants] to identify a basis for why they were entitled to invade opposing counsel’s file, the trial court ordered [Lawyer] to submit his entire file concerning the August 15, 2007, auto accident for an in camera inspection."

    Client appealed, contending that "the subpoena in question is a classic 'fishing expedition'."  Agreeing, the Fourth DCA reversed.  "[Defendants] made no attempt by way of interrogatories or requests for production to determine whether there were documents in the auto accident file relevant to the instant case; much less that they were 'unable without undue hardship to obtain the substantial equivalent of the materials by other means.'  [Fla.R.Civ.P. 1.280(b)(3).]  Curiosity about the contents of the auto accident file does not satisfy the relevancy requirement.  Having failed to make even a minimal showing of entitlement to any documents contained in the auto accident file, there is no justification under the Florida Rules of Civil Procedure to order [Lawyer] to provide the trial court with his file for an in camera inspection."  Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010).

Lawyer is not required to produce documents that he does not have.  [Added 7/29/05]  --  Wells v. Office of Public Defender, 907 So.2d 1247 (Fla. 3d DCA 2005).

Mandamus does not lie to require court-appointed lawyer to provide file material to former criminal defense client at no charge (with certain limited exceptions).  [Added 3/27/04]  --  Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004).

Retaining lien on former client's file trumps discovery demand by former client in legal malpractice case.  [Added 12/9/03]  --  Foreman v. Behr, 866 So.2d 705 (Fla. 2d DCA 2003).