Boston Insurance Co. v. Economy Handkerchief Co.

TANNER, J.

In this case the receiver of a national bank is seeking to prosecute a claim before a Master in Chancery for money due the said hank. He has had issued a subpoena duces tecum against Mr. Rickard, who is holding certain papers belonging to said bank under a claim of an attorney’s lien for services rendered.

The géneral rule as claimed by Mr. Rickard is that he is entitled to retain said papers as against his client.

For complainant: Sherwood, Helt-zen & Clifford. For creditors and for receiver: James H. Rickard; Greene, Kennedy & Greene; Boss, Shepard & McMahon; Murdock & Tillinghast.

Though his lien should not be permitted to embarrass a third person, under certain circumstances, especially where the papers are needed for use in a suit pending, the Court may, in its discretion, order an attorney to relinquish the papers or to allow an inspection and copy of them.

6 C. J. 786;

See also Thornton on Attorneys-at-Law, Vol. 2, p. 973 and p. 1020:

“It would be contrary to good public policy and detrimental to the due administration of the affairs of the state to permit its officers to be harassed and hindered in the discharge of their duties by parties asserting rights either by way of attorney’s lien, attachment, garnishment proceedings or otherwise.”

The receiver of the bank in this ease is a public officer who, as we understand it, takes title to the papers which come into his hands in a case like this. He is, therefore, perhaps in the position of a third party who should not be embarrassed by an attorney’s lien. His failure to be able to use the papers retained by the attorney may result in a serious loss of assets to the creditors of said bank. We think these facts may be held to create an emergency which would modify the general rule. As we desire, however, to protect the attorney’s lien 'as far as possible, we will make our decision conditional upon the retention by said receiver of any funds which may come into his hands by reason of the suit he is now prosecuting in this case subject, in the first instance, to the lien of the attorney.

Under these conditions we deny the petition and quash the subpoena duces tecum.