1. The categorisation of liens and the important differences between them

A solicitor has three quite distinct rights called “liens”: a general or “retaining” or “possessory” lien, a particular or “charging” or “non-possessory” or “fruits of the action” lien, and an equitable assignment. 

The general lien is a right to retain personal property, including money in trust, in the solicitor’s possession as a solicitor until he or she has been paid costs incurred in a professional capacity.

The particular or “fruits of the action” lien extends to any property, except real property recovered or preserved, or any money from a judgment, award or compromise obtained  by the solicitor's exertions within the scope of the retainer, in the amount of her or his costs incurred under that retainer.

The release suggests seven ways of losing a lien and four things to do to avoid losing it.

2. The problems of having to produce property the subject of a lien because of the interests of third parties

The reader may reasonably think that the court’s powers to order production imposes substantial difficulties on a solicitor maintaining a lien in ongoing litigation. However, there are recent examples of the successful judicial resolution of the competing tensions between upholding an existing lien and the interests of justice limiting inspection.

3. Insolvency

The content of this release builds on that in the chapter “Creation, duration and termination of retainer” describing the incidents of a retainer by a liquidator, a trustee in bankruptcy and a receiver to consider the more complex arrangements and relationships that characterise this area of practice.  

4. Termination of the retainer

Three questions frame the problems of how the termination of a solicitor’s retainer affects a solicitor’s lien.

• Did the solicitor discharge the client or did the client discharge the solicitor?
• If the solicitor discharged the client, was there reasonable cause for the solicitor to have done so?
• If there was reasonable cause for the solicitor to discharge the client, and the solicitor did so, should the court refuse a mandatory order for delivery of the client's documents or impose terms on the delivery of the client's documents other than a term requiring the new solicitor to undertake to preserve the lien of the original solicitors and return the documents?

The questions relate to the retaining lien and sometimes they suggest that the best security for the solicitor lies in securing a concurrent equitable or fruits of the action lien. In other cases, as the court wrestles with factors such the nature of the case, the stage that the case has reached, the conduct of the solicitor and the client respectively, other solutions may suggest themselves.

The release gives particular consideration to the impact of termination upon one particular kind of retainer the No-Win No-Fee retainer.

5.  The future of liens

The release concludes by considering what developments might flow from changes such as the abandonment of the “statutory supplementation” of the particular lien made in Tasmania, Victoria and Western Australia.

The final part of the chapter will deal with litigation with the client, some of the problems for solicitors and barristers as advocates in litigation and the importance of the refashioned process of taxation assessment.