This is an action by a law firm against former clients, seeking payment of legal fees charged in connection with now-resolved litigation. The defendants have requested production of the plaintiff's file relating to the earlier litigation, with the scope of the request encompassing materials that might not ordinarily be considered part of a litigation file, especially including “backups” and materials “otherwise pertaining to” the defendants, while also presumably including materials likely already in the possession of the defendants (especially, billing documents):

The plaintiff has objected to this request, based on numerous grounds including relevance, undue burden, and the defendants’ possession of many of the materials requested.[1] The primary objection – at least based on the nature of arguments of the parties – is based on the assertion of a retaining lien. The court heard argument on the defendants’ requests and the plaintiff's objections on September 19, 2022.

The court has reviewed the submissions of the parties (#108.00, #117.00, and #119.00), and Marsh, Day & Calhoun v. Solomon, 204 Conn. 639, 529 A.2d 702 (1987), claimed by the plaintiff to articulate the controlling principles of law – the existence of a retaining lien under Connecticut law and the conditions and exceptions to application of what is generally described as a self-executing lien. The court also has considered the relevant provisions of Chapter 13 of the Practice Book.

Whether viewed from a technical or practical or policy perspective, the defendants have not established a basis for non-application of a retaining lien in these circumstances. Technically, they have not identified any recognized exception to the presumptive applicability of the lien as discussed in Marsh. Although the plaintiff had moved for permission to withdraw its appearance in the underlying litigation, that motion was never adjudicated or granted, such that there was no voluntary withdrawal of the existing appearance, a recognized exception to the existence of the lien. (The defendants, at times, blur the distinction between the filing of a motion for permission to withdraw an appearance (which was filed) and the actual withdrawal of an appearance (which never happened – the defendants filed self-represented “in lieu of” appearances in the underlying litigation, the same day that the case itself was withdrawn[2]).

On a practical level, the retention of new counsel (Pullman & Comley) to handle mediation of the underlying dispute, while perhaps not technically a substitution (as Pullman & Comley did not file an appearance in the underlying litigation), would appear to have been a relatively unambiguous demonstration of lack of faith in the ability of the plaintiff to pursue the defendants’ interests in that underlying litigation. This comes close to a scenario identified in DeLeo v. Nusbaum, 263 Conn. 588, 598, 821 A.2d 744 (2003) as the functional termination of an attorney-client relationship (“A de facto termination occurs if the client takes a step that unequivocally indicates that he has ceased relying on his attorney's professional judgment in protecting his legal interests ....”) The court recognizes that DeLeo involves a materially different situation, but there is a level of persuasiveness to the analogy to the extent that the conversion from a representational relationship to something of an adversarial relationship is present here as well.

From a policy perspective – with an overlay of additional practicality – the defendants implicitly suggest that if a client creates a situation of unresolved (even tentatively) substantial outstanding billing that is perceived to be unduly burdensome by the attorney, the resulting application to withdraw an appearance on behalf of the client should be deemed a voluntary cessation of representation, thereby allowing the client to create an exception to the retaining lien. This has the potential to encourage action by a client putting an attorney into a position of feeling obligated to seek to withdraw an appearance, contrary to public policy and potentially encouraging conduct that would undermine the purpose for a retaining lien.

The defendants argue that “[w]hen the client in an attorney client relationship is looking to sue its attorney as a matter of public policy the lawyer should share the file with the client.” The defendants do not explain how that is to be balanced against the established right of the attorney to a retaining lien, nor do the defendants explain why production of billing records/information plus an offered opportunity for inspection of the file do not provide an appropriate balance, at least as a first step in the discovery process. Again, this request is in the context of pending litigation, and the assertion of “looking to sue its attorney” does not appear to be a basis for discovery under Chapter 13 of the Practice Book.

The defendants’ suggestion that their willingness to “promise to return the files after they are used for the purpose needed should be enough” should be sufficient, ostensibly consistent with Marsh, is form over substance. The relevant discussion in Marsh was in the context of articulated prejudice arising from a failure to provide the materials (seemingly limited in scope); the defendants have offered no plausible claim of prejudice from the denial of access to the entirety of the plaintiff's file with respect to this case (and certainly nothing on a par with Hauptmann (discussed below)), as opposed to a more limited scope of discovery that they appear unwilling to consider. Further, their offer to return the file would result in the return of the file after all of the value of the file for purposes of a retaining lien had been destroyed.

The relevant discussion in Marsh cited a New York case, variously identified/cited as In re Hauptmann and Hauptmann v. Fawcett, 243 App. Div. 613, 276 N.Y.S. 523; modified, 243 App. Div. 616, 277 N.Y.S. 631 (1933). As reflected in the text of the modified order, only designated documents/materials were to be provided (“the books and papers to be enumerated in the order to be entered hereon”), and the documents sought were related to the defense of a murder charge (apparently, the Lindbergh baby kidnapping case). Here, there is no claim of particularized need for particularized documents.

From a different perspective, the plaintiff properly notes that the scope of discovery is framed by the current litigation. The scope of discovery under Practice Book § 13-2 is framed in terms of the existing claims and potential defenses; it is not a substitute for a bill of discovery seeking information that might possibly support an as-yet-unalleged cause of action for a counterclaim or independent action. Conversely, the defendants have been candid in identifying a potential malpractice-type claim as a major if not the major rationale for seeking “everything” from the plaintiff. To the extent that Practice Book § 13-9(a) authorizes a request for an opportunity to inspect and copy/reproduce designated documents, the plaintiff's offer to allow counsel to inspect the entire file with some level of willingness to provide copies of designated documents, comes closer to the spirit of the rule than the defendants’ insistence on a “give me everything” approach without regard to need for everything for purposes of the issues present in the current litigation.

The court is compelled to note that portions of the defendants’ submission and arguments blur the distinction between possible claims/defenses and venting. “In the [motion for permission to withdraw] CTSH publicly indicating that the Salzmans had not fulfilled their financial obligations which can be highly detrimental to the business of Mr. Salzman.” The court understands how that might be taken personally (with potential professional implications[3]), but that has no apparent bearing on any issue currently before the court. If the court were to consider it as having some bearing, the court would need to consider the plausibility of the suggestion that there might be any level of public awareness of a sentence in a motion for permission to withdraw an appearance (“The clients have not substantially fulfilled their obligation to counsel regarding services rendered, which is an unreasonable financial burden on counsel”). The likelihood of public awareness would seem to be implausible, and becomes trivially insignificant when compared with the public-awareness consequences of the subsequent commencement of this litigation making the existence of a claim of failure to satisfy financial obligations far more public. In the underlying litigation – which facially was in the nature of a “neighbor dispute” – the claimed-offensive language would have required careful reading of the substance of every entry in the docket to find a somewhat isolated sentence; this case is coded as “C-40” which is the code for a collections-type case, with the nature of the claim apparent without the need to read any entry (and the complaint makes it clear that there is a claim of substantial unpaid indebtedness).[4]

The court notes that the defendants have defined the “file” that they seek in far broader terms than might ordinarily be understood in connection with production of the file. In addition to actual documents, they ask for all draft versions, backups, etc. While not inherently determinative, requests for backups generally arise in the context of claims of altered or deleted documents or as a response to a claim of non-existence of documents that are believed to have existed at some prior time such that archival materials may be important. While not determinative, it is yet another factor in determining whether the request is overbroad, unduly burdensome, etc., based on the issues presented by the case as currently framed (and even with the potential for a malpractice claim).

Despite a “suggestion” from the court that some narrowing of scope of the request might be appropriate, the defendants have taken essentially an all-or-nothing approach. The plaintiff's position is somewhat less extreme, although insisting that the retaining lien provides justification for its resistance to turning over any sense of a complete file. The plaintiff has offered to allow counsel to review, essentially manually (personally), the file in plaintiff's counsel's office, including an opportunity to designate specific documents for reproduction (presumably with some limitation based on an unidentified standard of reasonableness). Alternatively, and consistent with the language of Marsh, the plaintiff is willing to provide the file if adequate security is provided against the eventuality that it might prevail, e.g., requiring a posting of a bond.

The court affords no weight to the defendants’ observation that the plaintiff has not sought a prejudgment remedy. It is not for the defendants to dictate the manner in which the plaintiff should choose to protect its financial interests. If the plaintiff is satisfied with the level of protection afforded by a retaining lien – at no cost except to defend its right to assert a lien, as here – the court has no basis to compel the plaintiff to incur the time, expense and burden of seeking a prejudgment remedy. Each side is entitled to make its own strategic decisions.

Finally, the court notes that courts routinely review the reasonableness of a claim for attorney's fees – rarely if ever with the benefit of the billing party's entire file (especially as defined by the defendants in this case). See, e.g., Valente v. Securitas Security Services USA, Inc., Docket No. FSTCV085008446S, 2015 Conn. Super. LEXIS 1708, 2015 WL 4570813, (Super. June 25, 2015). In many instances, the nature of a billed task and the time claimed may be all that is necessary to make an appropriate determination. (For example, in Valente, the court identified the excessive billings associated with the filing of an appearance, based solely on the entries themselves.) Conversely, multiple hours billed for research on a designated topic might or might not be reasonable, but there would not be an inherent likelihood that the documents in the file would shed light on whether 1 or 2 or 3 hours actually had been spent and spent reasonably on research for an issue in the case being handled – the nature and complexity of the issue would seem to be more informative. Particularly if the goal is assessing the nature of a potential malpractice claim, presumably defendants’ counsel or an expert retained by the defendants could perform a similar (if perhaps preliminary) review, without the need for the entire file as defined by the defendants. (The proper balance between the plaintiff's assertion of a retaining lien and the defendants’ presumed discovery rights, in the context of a currently-hypothetical malpractice action, is not before the court at this time.)

The defendants have not attempted to identify any particularized need for specific documents or types of documents in connection with their broad claim for the plaintiff's file, and with the exception of billing records (see footnote 1, above), the court will not speculate as to which portions of the file might properly be sought despite the existence of a retaining lien. The court does not see any middle-ground order that might be feasible. The defendants insist on “everything” and have not articulated a basis on which the court might enter an order addressing their current litigation needs without eviscerating the plaintiff's retaining lien. The plaintiff's offer of review plus some level of copying is far closer to an appropriate balancing of interests.

Synthesizing the foregoing, the objection is sustained. The defendants are not precluded from submitting more particularized discovery requests, but they have not established the propriety of granting them access to the plaintiff's entire file, and especially as they have identified/defined it.