Academy of California Optometrists, Inc. v. Superior Court

I concur in the result and in most of the court’s opinion. I do not agree with those portions of the opinion which imply a distinction turning on the pecuniary value of the property subjected to the attorney’s claim of lien. In embracing papers and other material which the client needs for the continued protection of his interests in or out of court, the retaining lien provision is illegal because it offends important tenets of professional ethics. The tenets are violated without regard to the pecuniary value of the withheld material. I see no logical justification for the court’s dicta limiting our decision to property without pecuniary worth. These dicta will stimulate confusion and litigation. They obscure the guidance which the opinion should supply the legal profession.

Zang, Friedman & Damir and Wilke, Fleury, Sapunor & Hoffelt for Real Party in Interest.

OPINION

PARAS, J.

This case presents an issue never before decided in California: May an attorney assert a contractual "retaining lien" upon files and papers of no monetary value given to him by his client or accumulated during his employment, by which he is entitled to possession of such documents until his fee is paid? Petitioner corporation seeks a writ of mandate after the superior court refused to order its former attorney, real party in interest Robert Damir, to deliver to it such files and records.

Damir was retained by petitioner on March 2, 1970, to litigate a controversy between petitioner and California Vision Services. The retainer agreement provided for an hourly fee at "prevailing" rates, payable monthly as billed, and in the event the litigation resulted in a monetary settlement, a percentage of the recovery. The complaint was filed on January 21, 1971, in San Francisco. The defendants succeeded in changing venue to Sacramento, and extensive pleadings were filed, including a 101-page third amended complaint and lengthy memoranda of points and authorities. Substantial…

This case presents an issue never before decided in California: May an attorney assert a contractual “retaining lien” upon files and papers of no monetary value given to him by his client or accumulated during his employment, by which he is entitled to possession of such documents until his fee is paid? Petitioner corporation seeks a writ of mandate after the superior court refused to order its former attorney, real party in interest Robert Damir, to deliver to it such files and records.

Damir was retained by petitioner on March 2, 1970, to litigate a controversy between petitioner and California Vision Services. The retainer agreement provided for an hourly fee at “prevailing” rates, payable monthly as billed, and in the event the litigation resulted in a monetary settlement, a percentage of the recovery. The complaint was filed on January 21, 1971, in San Francisco. The defendants succeeded in changing venue to Sacramento, and extensive pleadings were filed, including a 101-page third amended complaint and lengthy memoranda of points and authorities. Substantial discovery was undertaken, including interrogatories and 38 depositions.

Apparently unhappy at what it…