By Neta, founder of SortMyDivorce · Updated
Whether you left your lawyer or your lawyer left you, the same problem follows: the file is in their office and your case is going on without it. This guide is about what the conduct rules require a lawyer to hand over, what the lien for unpaid fees actually allows them to keep, what else you are owed on the way out, and how to ask for all of it in a way that gets a response. This guide quotes the Canadian Model Code and California's conduct rule. Every provincial law society has adopted the Model Code in its own version, and the lien is also shaped by provincial statute and case law that this page does not cover. The United States position varies by state; California's is quoted because it is the clearest on the file. Confirm your own jurisdiction's rules before relying on any of it.
| The rule | Model Code 3.7-9(b): on discharge or withdrawal a lawyer must, "subject to the lawyer's right to a lien, deliver to or to the order of the client all papers and property to which the client is entitled." |
|---|---|
| The lien, and its limit | Commentary [2]: "a lawyer should not enforce a lien if to do so would prejudice materially a client's position in any uncompleted matter." |
| Information | 3.7-9(c): "give the client all relevant information in connection with the case or matter," subject to trust conditions. |
| Money | 3.7-9(d): "account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned." |
| The final bill | 3.7-9(e): "promptly render an account for outstanding fees and disbursements." |
| The handover | 3.7-9(f): "co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoid prejudice to the client." |
| What the successor gets | Commentary [4]: "any memoranda of fact and law that have been prepared by the lawyer in connection with the matter." |
| California | Rule 1.16(e)(1): release "all client materials and property … whether the client has paid for them or not." |
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The starting point in the Canadian rules is rule 3.7-9, which lists what a lawyer must do "on discharge or withdrawal." It applies whichever way the relationship ended: "discharge" is you ending it, "withdrawal" is the lawyer ending it. Either way, paragraph (b) requires the lawyer to "deliver to or to the order of the client all papers and property to which the client is entitled."
"To or to the order of the client" means the file can go to you or, on your instruction, straight to the new lawyer. In practice, straight to the new lawyer is faster and is what paragraph (f) contemplates: "co-operate with the successor lawyer in the transfer of the file so as to minimize expense and avoid prejudice to the client."
The commentary describes what the successor should receive. Paragraph [4]: "Co-operation with the successor lawyer will normally include providing any memoranda of fact and law that have been prepared by the lawyer in connection with the matter, but confidential information not clearly related to the matter should not be divulged without the written consent of the client." So the file is not just the correspondence and the court documents. The lawyer's own research and memoranda on your case are part of what the successor normally gets.
Rule 3.7-8 sets the standard for the whole handover: "the lawyer must try to minimize expense and avoid prejudice to the client and must do all that can reasonably be done to facilitate the orderly transfer of the matter to the successor lawyer."
The words "subject to the lawyer's right to a lien" in rule 3.7-9(b) are what most people run into. A lien is the lawyer's right to hold the file as security for unpaid fees. It is real, and the commentary confirms it: paragraph [3], "The obligation to deliver papers and property is subject to a lawyer's right of lien."
But the same commentary limits it in a way that matters in an active divorce. Paragraph [2]: "If the question of a right of lien for unpaid fees and disbursements arises on the discharge or withdrawal of the lawyer, the lawyer should have due regard to the effect of its enforcement on the client's position. Generally speaking, a lawyer should not enforce a lien if to do so would prejudice materially a client's position in any uncompleted matter."
A divorce with a hearing coming is an uncompleted matter, and a file withheld before that hearing prejudices the client's position materially. That is the sentence to quote back if a file is being held against an unpaid account while a court date approaches. The lien exists; the rules say it should not be used that way.
Two practical points about the lien.
It is about the lawyer's work product and the file they assembled. Documents you gave the lawyer, and court documents that are on the public record, are the easy part. If a file is being held, ask at least for those immediately.
It is answered by paying or by securing the account, not by argument. If the account is disputed, the routes for challenging a lawyer's bill are in a separate guide. A disputed bill does not, on its own, defeat a lien; but the commentary's limit on enforcing one during an uncompleted matter does not depend on whether the bill is disputed.
California's rule 1.16(e) answers the lien question differently, and more clearly, for the file. On termination of a representation "for any reason," the lawyer "promptly shall release to the client, at the request of the client, all client materials and property." The rule defines the term: "'Client materials and property' includes correspondence, pleadings, deposition transcripts, experts' reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client's representation, whether the client has paid for them or not."
"Whether the client has paid for them or not" is the operative phrase. In California, the file is not security for the bill. Other states differ, and some recognise a retaining lien; check your state's rule and bar guidance before assuming either position.
Rule 1.16(e)(2) covers the money: the lawyer "promptly shall refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred," with an exception for "a true retainer fee paid solely for the purpose of ensuring the availability of the lawyer for the matter."
The file is item (b). Rule 3.7-9 has six other items, and three of them are about money and information.
Information. Paragraph (c): "subject to any applicable trust conditions, give the client all relevant information in connection with the case or matter." If you do not know the next court date, the state of disclosure, or what offers are open, this is the paragraph under which you ask.
An accounting, and a refund. Paragraph (d): "account for all funds of the client then held or previously dealt with, including the refunding of any remuneration not earned during the representation." Money you paid on account that has not been earned comes back. The trust ledger showing what was received and what was applied is what you ask for.
A final bill. Paragraph (e): "promptly render an account for outstanding fees and disbursements." A lawyer cannot both hold the file for unpaid fees and decline to say what the fees are.
Cooperation with the successor. Paragraph (f), above. And rule 3.7-10 puts a matching obligation on the incoming lawyer: "Before agreeing to represent a client, a successor lawyer must be satisfied that the" former lawyer has been discharged or has withdrawn. The new lawyer will ask you about the old one, and a clean discharge letter is what lets them start.
One letter, four requests, dated. The file (or its transfer to the named successor); the trust accounting with any unearned funds refunded; the final account; and a written summary of the current state of the case including every upcoming date. Cite rule 3.7-9 by paragraph if you want to; you do not have to.
Give a delivery address and a deadline. "To [successor firm] by [date]." Vague requests get vague timing.
If a lien is raised, ask two questions in writing. What is the amount claimed, and what is the lawyer's view of commentary [2] given the next court date. Then decide whether to pay, secure or challenge the account. Do not let the correspondence run past the court date.
Ask for it in electronic form. The California rule mentions "electronic or other form"; the Canadian rule does not specify. An electronic file transfers in a day; a box takes a courier and a week.
Keep your own record going forward. The reason a change of lawyer is so disruptive is that the client's only copy of the case was in the lawyer's cabinet. Every letter that reaches you, every deadline it sets and every offer it contains can be kept by you as it arrives. A successor who receives that from you does not have to wait for the box.
Verification note. The solicitor's lien in Canada is also governed by provincial statute and case law, none of which was read for this page; the lien is described here only as the Model Code's commentary describes it. The retaining lien in United States jurisdictions other than California is referred to generally and not sourced. Rule 3.7-10 is quoted only to its opening words, which is all that was read.
The Canadian rules recognise a lien, but the commentary says a lawyer "should not enforce a lien if to do so would prejudice materially a client's position in any uncompleted matter." A divorce with a hearing pending is that. In California, the file is released "whether the client has paid for them or not." Elsewhere in the United States, check your state.
The commentary says cooperation with the successor "will normally include providing any memoranda of fact and law that have been prepared by the lawyer in connection with the matter." Purely internal notes are a greyer area and vary by jurisdiction; ask for the memoranda first.
Rule 3.7-9(d) requires the lawyer to account for all client funds "including the refunding of any remuneration not earned during the representation." Ask for the trust ledger and the refund together.
Rule 3.7-9(e) requires a prompt account for outstanding fees and disbursements. Ask for it in writing. Once you have it, the guide to challenging a lawyer's bill covers the review routes if you dispute it.
Yes. The rule says "to or to the order of the client," and paragraph (f) requires cooperation with the successor. Name the successor and the address in your request.
No. Rule 3.7-9 applies "on discharge or withdrawal," and rule 3.7-7(a) says a lawyer must withdraw if discharged by the client. The obligations on the way out are the same.
Last reviewed September 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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