{ "id": 261361, "name": "TWIN SEWER AND WATER, INC., et al., Plaintiffs, v. MIDWEST BANK AND TRUST COMPANY et al., Defendants; DAVIDSON GOLDSTEIN MANDELL AND MENKES, Petitioner-Appellee v. TWIN SEWER AND WATER, INC., et al., Respondents-Appellants", "name_abbreviation": "Twin Sewer & Water, Inc. v. Midwest Bank & Trust Co.", "decision_date": "1999-10-29", "docket_number": "Nos. 1-98-2407, 1-99-0695 cons.", "first_page": "662", "last_page": "675", "citations": [ { "type": "official", "cite": "308 Ill. App. 3d 662" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "197 Ill. App. 3d 67", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2480965 ], "year": 1990, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/0067-01" ] }, { "cite": "619 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "709" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 53", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777553 ], "year": 1993, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0053-01" ] }, { "cite": "709 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "670" } ], "opinion_index": 0 }, { "cite": "303 Ill. App. 3d 1060", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511394 ], "year": 1999, "pin_cites": [ { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/1060-01" ] }, { "cite": "45 A.L.R4th 198", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "year": 1986, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "701 N.E.2d 774", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "775", "parenthetical": "stating that since a retaining lien is a passive lien, the attorney must wait until the client agrees to pay outstanding attorney fees in exchange for files \"out of embarrassment or inconvenience\"" } ], "opinion_index": 0 }, { "cite": "122 Ohio App. 3d 351", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 1608636 ], "year": 1997, "pin_cites": [ { "page": "354", "parenthetical": "stating that since a retaining lien is a passive lien, the attorney must wait until the client agrees to pay outstanding attorney fees in exchange for files \"out of embarrassment or inconvenience\"" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/122/0351-01" ] }, { "cite": "445 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1983, "pin_cites": [ { "page": "1201" }, { "page": "1205" }, { "page": "1205" }, { "page": "1205" }, { "page": "1205" } ], "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 824", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433078 ], "weight": 7, "year": 1983, "pin_cites": [ { "page": "826" }, { "page": "832" }, { "page": "832" }, { "page": "832" }, { "page": "832" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0824-01" ] }, { "cite": "127 N.E.2d 519", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1955, "pin_cites": [ { "page": "520" }, { "page": "520" }, { "page": "520-21" }, { "page": "521" }, { "page": "521" } ], "opinion_index": 0 }, { "cite": "6 Ill. App. 2d 304", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5138683 ], "weight": 6, "year": 1955, "pin_cites": [ { "page": "306" }, { "page": "306-07" }, { "page": "308" }, { "page": "308-09" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/6/0304-01" ] }, { "cite": "26 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1940, "pin_cites": [ { "page": "673" }, { "page": "674" }, { "page": "673" }, { "page": "673", "parenthetical": "stating that the exception to the court's inability to enforce a retaining lien occurs when the former attorney is brought into court upon application of the client, to compel the release of files" } ], "opinion_index": 0 }, { "cite": "304 Ill. App. 537", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3305466 ], "weight": 7, "year": 1940, "pin_cites": [ { "page": "543" }, { "page": "547" }, { "page": "543" }, { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-app/304/0537-01" ] }, { "cite": "698 N.E.2d 598", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "298 Ill. App. 3d 411", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073638 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0411-01" ] }, { "cite": "578 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "1078", "parenthetical": "superceded by statute on other grounds, see In re Liquidation of Coronet Insurance Co., 298 Ill. App. 3d 411, 698 N.E.2d 598 (1998)" }, { "page": "1078" }, { "page": "1078" }, { "page": "1078" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 674", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499203 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "677", "parenthetical": "superceded by statute on other grounds, see In re Liquidation of Coronet Insurance Co., 298 Ill. App. 3d 411, 698 N.E.2d 598 (1998)" }, { "page": "677" }, { "page": "677" }, { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0674-01" ] }, { "cite": "79 Ill. B.J. 274", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1991, "pin_cites": [ { "page": "274" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 256", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5382096 ], "weight": 8, "year": 1915, "pin_cites": [ { "page": "258" }, { "page": "258", "parenthetical": "stating that \"[t]he possessory lien is a right merely to retain, and cannot be actively enforced\"" }, { "page": "258" }, { "page": "258" }, { "page": "258" }, { "page": "258" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-app/191/0256-01" ] }, { "cite": "231 N.E.2d 637", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "639" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 2d 350", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2548477 ], "year": 1967, "pin_cites": [ { "page": "354-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/87/0350-01" ] }, { "cite": "21 N.E. 601", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "year": 1889, "pin_cites": [ { "page": "603" } ], "opinion_index": 0 }, { "cite": "128 Ill. 631", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5412670 ], "weight": 3, "year": 1889, "pin_cites": [ { "page": "637-38" } ], "opinion_index": 0, "case_paths": [ "/ill/128/0631-01" ] }, { "cite": "410 N.E.2d 159", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 16, "year": 1980, "pin_cites": [ { "page": "160" }, { "page": "161" }, { "page": "161" }, { "page": "161" }, { "page": "161" }, { "page": "161-62" }, { "page": "162" }, { "page": "161" }, { "page": "160" }, { "page": "162" }, { "page": "162" }, { "page": "162" }, { "page": "161" } ], "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 662", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3180353 ], "weight": 16, "year": 1980, "pin_cites": [ { "page": "664" }, { "page": "664" }, { "page": "664" }, { "page": "664" }, { "page": "664-65" }, { "page": "666" }, { "page": "666" }, { "page": "665" }, { "page": "663-64" }, { "page": "666" }, { "page": "666" }, { "page": "666" }, { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0662-01" ] } ], "analysis": { "cardinality": 1020, "char_count": 31449, "ocr_confidence": 0.779, "pagerank": { "raw": 6.86664882660679e-08, "percentile": 0.41811626855465317 }, "sha256": "e4add1e457548886a0de5d4777d235e396a5586f6d747f9781c3b6aa38e0c136", "simhash": "1:227275b497cbe854", "word_count": 5259 }, "last_updated": "2023-07-14T16:54:33.383803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TWIN SEWER AND WATER, INC., et al., Plaintiffs, v. MIDWEST BANK AND TRUST COMPANY et al., Defendants. \u2014 DAVIDSON GOLDSTEIN MANDELE AND MENKES, Petitioner-Appellee v. TWIN SEWER AND WATER, INC., et al., Respondents-Appellants." ], "opinions": [ { "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nDavidson Goldstein Mandell & Menkes (Davidson Goldstein) served as legal counsel to plaintiffs, Twin Sewer & Water, Incorporated, and Mario and Marilyn DeBartolo, in these consolidated cases. On March 5, 1998, Davidson Goldstein filed a motion to withdraw as plaintiffs\u2019 counsel. After the circuit court granted leave to withdraw, Davidson Goldstein asserted a retaining lien over plaintiffs\u2019 documents to insure payment of allegedly outstanding legal fees. On March 30, 1998, Davidson Goldstein filed a petition for a summary proceeding alleging the existence of both statutory and common-law liens. On May 18, 1998, the circuit court entered an order requiring plaintiffs to deposit $40,000 with the clerk of the circuit court of Cook County as security for attorney fees owed to Davidson Goldstein. Plaintiffs then filed this interlocutory appeal pursuant to Supreme Court Rule 307(a) (166 Ill. 2d R. 307(a)) and maintain the following: (1) the circuit court did not have subject matter jurisdiction to consider Davidson Gold-stein\u2019s petition for adjudication of .the retaining lien; (2) Davidson Goldstein waived its retaining lien by representing to the trial court that it would turn over its case files to Twin Sewer\u2019s new attorneys; and (3) the trial court erred in adjudicating Davidson Goldstein\u2019s claim for attorney fees over Twin Sewer\u2019s objection and in the absence of pleadings or a hearing. For the reasons set forth below, we reverse the judgment of the circuit court.\nFACTS\nDavidson Goldstein represented plaintiffs in three consolidated chancery lawsuits currently pending in the circuit court of Cook County. On March 5, 1998, Davidson Goldstein filed a motion seeking leave to withdraw its appearance on behalf of plaintiffs. On March 10, 1998, at the hearing on the motion to withdraw, defendant Sherri dementi\u2019s (Clementi) counsel objected to the withdrawal on the ground that Davidson Goldstein had not yet complied with various discovery requests and orders. The trial court granted Davidson Gold-stein leave to withdraw but conditioned withdrawal on compliance with prior document production requests by March 24, 1998.\nOn March 30, 1998, Davidson Goldstein filed a petition for a summary proceeding to adjudicate liens, which alleged the existence of both a statutory lien under the Attorneys Lien Act (the Act) (770 ILCS 5/0.01 et seq. (West 1992)) and a common law retaining lien. Specifically, the petition stated that Davidson Goldstein\u2019s withdrawal as counsel of record was effective as of March 24, 1998, and requested that the trial court adjudicate the firm\u2019s retaining lien so as to allow release of the case files. Clementi again objected to Davidson Gold-stein\u2019s withdrawal and presented a motion for sanctions pursuant to Supreme Court Rule 219(c) (166 Ill. 2d R. 219(c)), arguing that the documents subject to the March 10 order had not yet been submitted for copying. As a result, on April 1, 1998, the trial court ordered Davidson Goldstein to submit the documents for copying at dementi\u2019s expense, and that upon submission of the documents for copying, Davidson Goldstein could withdraw as plaintiffs\u2019 counsel. According to the record, Davidson Goldstein complied with this order on April 1, 1998. The court\u2019s order also gave plaintiffs\u2019 new counsel leave to appear by April 17, 1998.\nOn April 17, 1998, plaintiffs\u2019 current counsel filed his substitute appearance. Then, at a hearing on April 22, 1998, he stated on the record that he was appearing for plaintiffs. As part of the proceedings on April 22, 1998, plaintiffs raised objections to Davidson Goldstein\u2019s lien adjudication petition. They claimed that Davidson Goldstein waived its retaining lien by making an appointment allowing plaintiffs\u2019 new counsel to examine the retained files and also by filing a petition asserting the retaining lien. In addition, plaintiffs also argued that it would be inequitable to allow them to pursue the retaining lien. The court responded by stating:\n\u201c[I]n fairness to the DeBartolos and to Twin Sewer & Water and in the overall interest of moving this case along without prejudice to your lien adjudication or ordering them to turn over to pay the law firm, I think that counsel should have that to file in order for him to proceed on the three cases.\u201d\nDavidson Goldstein informed the court that plaintiffs owed approximately $50,000 in attorney fees. When the court asked Davidson Goldstein how much plaintiffs had already paid, it said it did not know. Plaintiffs\u2019 new counsel then questioned the amount set forth by Davidson Goldstein, but the court stated:\n\u201cI think as a practical matter, I think that [Davidson Goldstein] should prepare to turn over these files to the new attorney because, after all, they still need to have representation with regard to the merits of the case. And I don\u2019t want to get sidetracked into large delays on this case because of this question of fees.\u201d\nThe court ultimately entered an order on April 22, 1998, allowing Davidson Goldstein leave to respond to plaintiffs\u2019 objections to lien adjudication and arranged for Davidson Goldstein to provide plaintiffs\u2019 new counsel with a full set of its billing invoices in this litigation.\nOn May 18, 1998, another hearing was held. At the hearing, Davidson Goldstein informed the court that it had complied with all requested discovery. Plaintiffs\u2019 new counsel, however, pointed out that not all billing invoices had been provided. Even though Davidson Goldstein stated that plaintiffs owed at least $42,000 in unpaid attorney fees, plaintiffs\u2019 new counsel disputed this amount, arguing that not all of the billing invoices were produced and there were questions as to the propriety of some of the charges.\nAt the conclusion of the hearing, the court granted Davidson Gold-stein\u2019s lien adjudication petition and stated:\n\u201cI\u2019m ordering that [the plaintiffs] pay into the Clerk of the Circuit Court of Cook County the amount of 100% of the claimed amount owed. That would be $40,000 that the court has been told about here today. And this is without prejudice to an adjudication of the amount of this money.\nBut I think that under the Upgrade Corporation case *** I think that this would be one way to go about this.\u201d\nThe trial court then requested that Davidson Goldstein turn over the case files within three days of receipt of the notice of deposit, and the court set discovery and briefing schedules on the issue of fees. Twin Sewer filed a motion to strike the petition on May 18, 1998, and then filed a motion to reconsider the May 18 order on June 11, 1998. The court denied both motions on June 25, 1998, and this timely interlocutory appeal followed.\nANALYSIS\nI\nPlaintiffs first contend that the circuit court lacked subject matter jurisdiction over Davidson Goldstein\u2019s petition for adjudication of the retaining lien. They argue that the circuit court incorrectly interpreted Upgrade Corp. v. Michigan Carton Co., 87 Ill. App. 3d 662, 410 N.E.2d 159 (1980). Davidson Goldstein, on the other hand, argues that the circuit court correctly interpreted Upgrade and had the inherent authority to adjudicate the retaining lien because the documents at issue were necessary to the pending underlying litigation.\nAn attorney who withdraws from a case for a justifiable cause or is terminated without cause may recover compensation for services rendered. See Upgrade Corp., 87 Ill. App. 3d at 664, 410 N.E.2d at 160. The measure of the lawyer\u2019s recovery lies in quantum meruit for the services actually rendered. See 7A C.J.S. Attorney & Client \u00a7\u00a7 290-91, at 540-45 (1980).\nTwo types of liens may be asserted to obtain payment of outstanding attorney fees. A charging or special lien attaches only to the proceeds recovered in the underlying litigation, while the retaining or general lien attaches to property belonging to the client which the attorney received during representation. Upgrade, 87 Ill. App. 3d at 664, 410 N.E.2d at 161, citing Sanders v. Seelye, 128 Ill. 631, 21 N.E. 601 (1889); see 7A C.J.S. Attorney & Client \u00a7 358, at 711-13 (1980). While the Act allows active enforcement as to \u201cany verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice\u201d (770 ILCS 5/1 (West 1992)), the retaining lien has long been recognized under Illinois common law as a possessory lien in favor of an attorney for his fees (Sanders, 128 Ill. 631, 21 N.E. 601). Specifically, the retaining lien exists \u201c \u2018on all papers or documents of the client placed in the attorney\u2019s hands in his professional character or in the course of his employment.\u2019 *** \u2018[It is] the attorney\u2019s right to retain possession of property belonging to his client which comes into his hands *** until his charges are paid.\u2019 \u201d Jovan v. Starr, 87 Ill. App. 2d 350, 354-55, 231 N.E.2d 637, 639 (1967), quoting Sanders, 128 Ill. at 637-38, 21 N.E. at 603, and Needham v. Voliva, 191 Ill. App. 256, 258 (1915), respectively. In other words, \u201cthe retaining lien is a method of holding the client\u2019s property hostage until fees are paid.\u201d S. Kanwit, Attorneys\u2019 Liens: When Can You Retain a Client\u2019s Files?, 79 Ill. B.J. 274, 274 (1991).\nAs a possessory lien, the retaining lien\u2019s existence is dependent upon the attorney\u2019s continued possession of the client\u2019s property and is only lost if the attorney surrenders possession of the documents. In re Liquidation of Mile Square Health Plan, 218 Ill. App. 3d 674, 677, 578 N.E.2d 1075, 1078 (1991) (superceded by statute on other grounds, see In re Liquidation of Coronet Insurance Co., 298 Ill. App. 3d 411, 698 N.E.2d 598 (1998)), citing Upgrade, 87 Ill. App. 3d at 664, 410 N.E.2d at 161. Until the attorney receives payment in full or the client posts adequate security for payment, assertion of the lien through continued possession of the documents is proper. See Upgrade, 87 Ill. App. 3d at 664, 410 N.E.2d at 161. However, a common law retaining lien cannot be actively enforced by a judicial proceeding. Upgrade, 87 Ill. App. 3d at 664-65, 410 N.E.2d at 161, citing Needham v. Voliva, 191 Ill. App. 256, 258 (1915) (stating that \u201c[t]he possessory lien is a right merely to retain, and cannot be actively enforced\u201d); Mile Square, 218 Ill. App. 3d at 677, 578 N.E.2d at 1078; Armstrong v. Zounis, 304 Ill. App. 537, 26 N.E.2d 670 (1940). In this sense, the retaining lien \u201cmay be characterized as a passive lien.\u201d Mile Square, 218 Ill. App. 3d at 677, 578 N.E.2d at 1078.\nThe aforementioned principles of law are clear and well settled. However, at this point some disagreement arises. For this reason, this opinion now turns to a brief overview of the Illinois cases discussing enforcement of retaining liens.\nIn 1915, this court released the Needham opinion. Needham, 191 Ill. App. 256. In Needham, the appellant, Needham, filed a bill for the adjudication of an attorney\u2019s lien under the Act upon a note and trust deed of Voliva\u2019s that were in Needham\u2019s possession. The case was referred to a master, who dismissed the bill \u201cfor want of equity.\u201d Needham, 191 Ill. App. at 258. On appeal, Needham argued in part that a party may \u201cresort to equity to adjudicate the validity of a common-law retaining lien.\u201d Needham, 191 Ill. App. at 258. This court disagreed, determined the bill should have been dismissed and declared that \u201cequity has no jurisdiction to adjudicate a possessory or retaining lien. *** The possessory lien is a right merely to retain, and cannot be actively enforced. [Citations.]\u201d Needham, 191 Ill. App. at 258.\nThis court returned to the issue of enforcement of the retaining lien in Armstrong v. Zounis, 304 Ill. App. 537, 26 N.E.2d 670 (1940). In Armstrong, the defendants appealed from a decree entered by the circuit court in a proceeding brought by the plaintiffs to foreclose an attorney\u2019s lien on real estate, where plaintiffs held the master\u2019s deeds and alleged unpaid attorney fees. The question before the court was \u201cwhether the attorney in a retaining case can enforce his rights as a retaining lienor where the lien exists in his favor upon the papers and documents that were placed in his possession by his client.\u201d Armstrong, 304 Ill. App. at 543, 26 N.E.2d at 673. The court reversed the circuit court\u2019s decree and remanded \u201cwith directions to dismiss the bill for want of equity.\u201d Armstrong, 304 Ill. App. at 547, 26 N.E.2d at 674. Specifically, the court quoted the following passage from Corpus Juris Secundum:\n\u201c \u2018Generally a retaining lien cannot be actively enforced, although, under circumstances noted hereunder, such lien may be enforced as an incident to a proceeding brought for another purpose.\n*** More specifically a general or retaining lien cannot be enforced by judicial proceedings brought for that purpose ***. On the other hand where the attorney is brought into court, upon ap plication of his client, to compel the attorney to turn over money or papers upon which he claims a lien, or in a suit by the attorney to recover his compensation, the court may ascertain the extent of the lien and enforce it.\u2019 \u201d (Emphasis added.) Armstrong, 304 Ill. App. at 543, 26 N.E.2d at 673, quoting 7 C.J.S. Attorney & Client \u00a7 233.\nNext, in Ross v. Wells, 6 Ill. App. 2d 304, 127 N.E.2d 519 (1955), the plaintiff, an attorney, filed a complaint for attorney fees. Defendants, in an effort to take the discovery deposition of plaintiff, had a notary public issue a subpoena requesting plaintiff\u2019s attendance at the deposition and that he produce files and records relating to the legal services he provided for defendants. Ross, 6 Ill. App. 2d at 306, 127 N.E.2d at 520. Plaintiff appeared before the notary in response to the subpoena but refused to produce the requested records on the ground that he had an attorney\u2019s lien, which would be destroyed if he produced the records. Ross, 6 Ill. App. 2d at 306-07, 127 N.E.2d at 520. Plaintiff was ordered to produce the requested documents but he still refused. Defendants then filed a petition to show cause against plaintiff why he should not be found in contempt. The circuit court dismissed defendants\u2019 petition and an appeal followed.\nThe court reversed the dismissal of defendants\u2019 petition and remanded so that plaintiff could show cause as to why he was not in contempt. Relying on the specific facts of the case, the court stated:\n\u201cThere is logic in the rule that a lawyer should be protected in his retaining lien until he is paid, and should not be compelled to produce and surrender the records and papers upon which he has such lien in any proceeding other than a suit by the attorney to recover his fees. We think there is a clear distinction when he sues for his fees.\u201d Ross, 6 Ill. App. 2d at 308, 127 N.E.2d at 520-21.\nThe court elaborated by reasoning that since the attorney filed the complaint and had the burden of proving the nature of the services rendered, he was under a duty to disclose the documents supporting his claim. Ross, 6 Ill. App. 2d at 308-09, 127 N.E.2d at 521. This obligation was determined to outweigh the significance of the retaining lien. Ross, 6 Ill. App. 2d at 309, 127 N.E.2d at 521.\nIn Upgrade, 87 Ill. App. 3d 662, 410 N.E.2d 159, this court revisited the issue of retaining liens. There, the appellant, an attorney, withdrew as one of plaintiffs\u2019 attorneys in an action for breach of trade secret agreements and obligations. The plaintiffs\u2019 remaining attorney then filed a petition seeking a court order requiring appellant to turn over all files concerning the pending litigation. Appellant claimed that he had a common law retaining lien and refused to release the files until he was paid for his services. The circuit court granted plaintiffs\u2019 petition but ordered that appellant be given a statutory lien to be determined upon the outcome of the case. On appeal, the court addressed two issues: (1) whether it was error for the court to enter a production order denying appellant his retaining lien; and (2) whether the court erred in failing to hold an evidentiary hearing to determine the plaintiffs\u2019 indebtedness for legal services. This court first determined that the circuit court properly exercised its power to order appellant to turn over the files but held that \u201cthe statutory lien on the proceeds of the pending litigation was inadequate security since such a lien would only attach if proceeds were in fact recovered.\u201d Upgrade, 87 Ill. App. 3d at 666, 410 N.E.2d at 161-62. The court also found that the circuit court erred by not determining the value of appellant\u2019s services and explained that, \u201c[wjhere the attorney is brought into court upon the petition of his client to compel the attorney to turn over money or paper upon which a retaining lien is claimed, the court may ascertain the extent of the lien and enforce it.\u201d (Emphasis added.) Upgrade, 87 Ill. App. 3d at 666, 410 N.E.2d at 162.\nThen, in Intaglio Service Corp. v. J.L. Williams & Co., 112 Ill. App. 3d 824, 445 N.E.2d 1200 (1983), an attorney withdrew from litigation when he was not paid. His former client both refused to pay the fees and filed a petition for a summary proceeding to compel surrender of the files in the case in exchange for security. The attorney and his law firm filed a lawsuit seeking recovery for costs advanced and fees for legal services rendered. Relevant to the case sub judice, the court held in part that even though the attorney became subject to discovery when he filed his lawsuit for fees, he did not waive his right to his retaining lien. Intaglio, 112 Ill. App. 3d at 826, 445 N.E.2d at 1201. The court made clear that the Ross decision \u201cmerely held that when an attorney files a suit for fees and the client contests the amount of the fees, the client is entitled to discovery in that action\u201d because the documents at issue \u201cdirectly bear on the claim for fees.\u201d (Emphasis in original.) Intaglio, 112 Ill. App. 3d at 832, 445 N.E.2d at 1205. The opinion added that an \u201cattorney has a right to his retaining lien until his fee is paid or proper and sufficient security is given.\u201d Intaglio, 112 Ill. App. 3d at 832, 445 N.E.2d at 1205, citing Upgrade, 87 Ill. App. 3d 662, 410 N.E.2d 159.\nOur discussion now turns to the application of the preceding cases to the case at bar. For the reasons set forth below, we find that the circuit court did not have the subject matter jurisdiction necessary to adjudicate the retaining lien.\nAccording to the record on appeal, Davidson Goldstein moved to withdraw as plaintiffs\u2019 counsel on March 5, 1998. Then, on March 30, 1998, Davidson Goldstein filed a document entitled \u201cPetition for Summary Proceeding to Adjudicate Liens,\u201d which the circuit court granted on May 18, 1998. Plaintiffs maintain that under Upgrade, when a party files a petition for a discovery order against its former attorney, the former attorney may then assert a retaining lien as a defensive measure. However, plaintiffs state that in this case they never asked the court for a discovery order after Davidson Goldstein withdrew from the case. Davidson Goldstein counters that plaintiffs\u2019 conclusion is incorrect because Upgrade actually held that the trial court had the inherent authority to release a lien upon payment of adequate security, \u201cin the interest of equity and fairness.\u201d\nAs stated above, each case discussing retaining liens is highly fact specific and each case presents a slightly different factual scenario. But it is clear from the case law that former counsel does not possess the right to obtain outstanding attorney fees in the manner sought by Davidson Goldstein. See Putnam v. Hogan, 122 Ohio App. 3d 351, 354, 701 N.E.2d 774, 775 (1997) (stating that since a retaining lien is a passive lien, the attorney must wait until the client agrees to pay outstanding attorney fees in exchange for files \u201cout of embarrassment or inconvenience\u201d); see also Anthony v. Bitter, 911 E Supp. 341, 342 (N.D. Ill. 1996), quoting Annotation, Attorney\u2019s Retaining Lien as Affected by Action to Collect Legal Fees, 45 A.L.R4th 198, 199 (1986). In Upgrade, the court made clear that former counsel was \u201cnot seeking to enforce his retaining lien by judicial proceedings\u201d; instead, he used \u201cthe existence of his retaining lien as a defense in proceedings initiated by his former clients to compel him to turn over his files.\u201d Upgrade, 87 Ill. App. 3d at 665, 410 N.E.2d at 161. This language, when read in conjunction with the several cases stating that a retaining lien cannot be actively enforced by a judicial proceeding (Needham, Upgrade and Mile Square), supports plaintiffs\u2019 argument.\nDavidson Goldstein insists that in Upgrade the attorney withdrew his appearance, asserted a retaining lien over his former client\u2019s files, and then his former client filed a petition asking the court to order the attorney to turn over files. This statement, however, is an incorrect representation of the facts in Upgrade. In Upgrade, former counsel withdrew his appearance, the plaintiffs\u2019 remaining counsel petitioned the court to order the turnover of files and then former counsel asserted the retaining lien. See Upgrade, 87 Ill. App. 3d at 663-64, 410 N.E.2d at 160. In contrast, in the instant case, Davidson Goldstein has filed a petition to adjudicate the lien, but plaintiffs have yet to seek an order asking for production of the files subject to the lien.\nInitially, this distinction may seem trivial, but upon closer examination, it is clear that since the common law retaining lien is constantly referred to as being a passive lien that may not be actively enforced in a judicial proceeding, the Upgrade court allowed former counsel to assert his retaining lien as a defense to a petition for discovery filed by his former client. See also Armstrong, 304 Ill. App. at 543, 26 N.E.2d at 673 (stating that the exception to the court\u2019s inability to enforce a retaining lien occurs when the former attorney is brought into court upon application of the client, to compel the release of files). Had the court not allowed the attorney this defensive measure, his lien would have been rendered meaningless. But the court never stated that the attorney could accelerate this process by bringing a petition to adjudicate the lien before the former client actively sought the files in the attorney\u2019s possession.\nDavidson Goldstein argues that, if the above is true, then it is unclear why the Upgrade court held that a trial court has the inherent authority to release a lien upon payment of security in the interest of equity and fairness. We find that this is an incorrect reading of Upgrade. The Upgrade opinion held that the trial court\u2019s grant of a statutory lien on the proceeds of the underlying litigation was madequate security because it would only be effective if plaintiffs were successful in the litigation. Upgrade, 87 Ill. App. 3d at 666, 410 N.E.2d at 162. In the next paragraph, the court added that the trial court erred by \u201cnot determining] the value of the appellant\u2019s services\u201d and that when a former client petitions for materials subject to a retaining lien, \u201cthe court may ascertain the extent of the lien and enforce it.\u201d Upgrade, 87 Ill. App. 3d at 666, 410 N.E.2d at 162. Then, the following sentence stated that the \u201cattorney who claims compensation for services rendered by him to the client is entitled to a summary determination fixing the value of his services so that such amount can be paid or otherwise adequately secured before the production order may be enforced.\u201d Upgrade, 87 Ill. App. 3d at 666, 410 N.E.2d at 162. Nowhere does the Upgrade decision state that the former attorney may bring a petition for adjudication of the lien or that the trial court has jurisdiction over such a petition.\nSubject matter jurisdiction is the power of a court to hear and determine the general question presented to it and to grant the particular relief sought. Cohen v. Salata, 303 Ill. App. 3d 1060, 1063, 709 N.E.2d 668, 670 (1999), citing In re M.M., 156 Ill. 2d 53, 64, 619 N.E.2d 702, 709 (1993). The Illinois Constitution of 1970 provides that circuit courts have \u201coriginal jurisdiction of all justiciable matters\u201d with a few limited exceptions. Ill. Const. 1970, art. VI, \u00a7 9. However, the Needham decision plainly stated that \u201cequity has no jurisdiction to adjudicate a possessory or retaining lien.\u201d Needham, 191 Ill. App. at 258. Similarly, Armstrong reversed the circuit court\u2019s entry of a decree to foreclose a retaining lien on real estate to satisfy unpaid legal fees because a retaining lien cannot be actively enforced. Armstrong, 304 Ill. App. 537, 26 N.E.2d 670. While it is true that this rule may delay underlying litigation, the overriding concern is that a former attorney could use the retaining lien as a weapon when the materials subject to the lien are not indispensable to the former client, which presents an ethical dilemma for the attorney. See 79 Ill. B.J. at 275.\nMoreover, the Act provides attorneys with a means of enforcing a lien on attorney fees. However, as stated above, the Act limits its scope to \u201cany verdict, judgment or order entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the notice.\u201d 770 ILCS 5/1 (West 1992). This language does not apply to a retaining lien. Needham, albeit relying upon an earlier version of the same Act, stated that \u201ca bill will not lie under this act to establish and enforce an attorney\u2019s lien upon the papers in the attorney\u2019s hands.\u201d Needham, 191 Ill. App. at 260. As a result, when we read both the case law and the statute, it is apparent that the circuit court should not have allowed Davidson Goldstein\u2019s petition.\nTherefore, we hold that since plaintiffs have not yet sought production of the files in Davidson Goldstein\u2019s possession, the circuit court did not have subject matter jurisdiction over Davidson Gold-stein\u2019s petition for adjudication of the retaining lien. Accordingly, we reverse the circuit court\u2019s order granting the petition.\nII\nPlaintiffs next contend that Davidson Goldstein has waived its retaining lien by representing to the court that it would copy the documents in its possession for plaintiffs\u2019 new counsel, and also by filing its petition to adjudicate the lien. We disagree.\nA retaining lien continues until the attorney receives payment of unpaid fees, the client posts adequate security for payment, or the attorney surrenders the materials subject to the lien. See Mile Square, 218 Ill. App. 3d at 677, 578 N.E.2d at 1078; see also Upgrade, 87 Ill. App. 3d at 665, 410 N.E.2d at 161. In fact, even the involuntary relinquishment of retained materials pursuant to a court order does not result in a loss of the lien. See In re Estate of Miller, 197 Ill. App. 3d 67, 72, (1990). None of the cases discussing retaining liens mention the concept of constructive waiver of the lien. For this reason, we rely on the plain language of the case law and find that any representation made by Davidson Goldstein that it would copy the documents for plaintiffs\u2019 new counsel did not result in waiver of the lien because it did not actually give up possession of the files.\nPlaintiffs\u2019 second argument, that Davidson Goldstein waived the retaining lien by filing its petition, also fails. In Intaglio Service Corp. v. J.L. Williams & Co., 112 Ill. App. 3d 824, 445 N.E.2d 1200, a company refused to pay attorney fees to its former counsel and sought production of files still in the attorney\u2019s possession and subject to a retaining lien. Subsequently, the attorney and his firm filed a lawsuit to recover costs and fees. The company relied on Ross and argued in part that the lawyer waived his retaining lien once he filed his suit for fees. This court disagreed and refused to find that the lien had been waived. Specifically, the court explained that Ross \u201cmerely held that when an attorney files a suit for fees and the client contests the amount *** the client is entitled to discovery in that action because *** the attorney has a duty to produce the books and records in that action that directly bear on the claim for fees.\u201d (Emphasis in original.) Intaglio, 112 Ill. App. 3d at 832, 445 N.E.2d at 1205. But the court made clear that Ross never held that an attorney waives a retaining lien by filing a suit for fees. Intaglio, 112 Ill. App. 3d at 832, 445 N.E.2d at 1205. In the instant case, Davidson Goldstein has not filed a separate suit for fees and subjected any of the documents in its possession to discovery. Accordingly, although Davidson Goldstein improperly asserted its retaining lien, the firm did not waive the lien by filing its petition to adjudicate the lien.\nIll\nPlaintiffs\u2019 final contention is that the court\u2019s order of May 18, 1998, is an improper adjudication of debt because it serves as a final determination that plaintiffs owe Davidson Goldstein money, when in fact the fees are under dispute.\nAt the hearing on May 18, 1998, the court granted Davidson Gold-stein\u2019s petition, ordered plaintiffs\u2019 to post $40,000 with the clerk of the circuit court as security for the retaining lien and set discovery and briefing schedules on the petition. When the court determined that plaintiffs should pay $40,000 into an account with the court, it specifically stated that it was taking Davidson Goldstein\u2019s word at face value for the purpose of security on the lien but its decision was \u201cwithout prejudice to an adjudication of the amount of this money,\u201d and \u201cif it\u2019s more or less, I will make that determination at the proper time, after Mr. Spak [plaintiffs\u2019 new counsel] has had a full opportunity to look into these matters.\u201d\nOn the basis of our analysis in part I, we find that the court should not have ordered plaintiffs to pay the $40,000 into an account with the court. The court lacked the jurisdiction to entertain Davidson Goldstein\u2019s petition, Davidson Goldstein was not a party in the pending litigation, the issue of attorney fees is still subject to dispute and plaintiffs have yet to formally request any of the documents over which Davidson Goldstein is asserting its possessory lien. Therefore, until plaintiffs seek production of these documents, the court should not order payment of money into an account as security.\nCONCLUSION\nThe Upgrade decision is clear that former counsel who asserts a retaining lien in an effort to obtain compensation for legal services may only seek enforcement of the lien once the former client initiates proceedings to compel the production of files. The instant case does not present such facts because the plaintiffs never filed discovery requests with the court. As a result, we reverse the circuit court\u2019s decision to entertain the lien petition and reverse its order of May 18, 1998.\nReversed.\nZWICK, EJ., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE BUCKLEY" } ], "attorneys": [ "Donald F. Spak, of Hamblet, Casey, Oremus & Vacin, of Chicago, for appellants.", "Bruce Menkes and Catherine A. Van Horn, both of Davidson Goldstein Mandell & Menkes, of Chicago, for appellees." ], "corrections": "", "head_matter": "TWIN SEWER AND WATER, INC., et al., Plaintiffs, v. MIDWEST BANK AND TRUST COMPANY et al., Defendants. \u2014 DAVIDSON GOLDSTEIN MANDELE AND MENKES, Petitioner-Appellee v. TWIN SEWER AND WATER, INC., et al., Respondents-Appellants.\nFirst District (6th Division)\nNos. 1 \u2014 98\u20142407, 1 \u2014 99\u20140695 cons.\nOpinion filed October 29, 1999.\nDonald F. Spak, of Hamblet, Casey, Oremus & Vacin, of Chicago, for appellants.\nBruce Menkes and Catherine A. Van Horn, both of Davidson Goldstein Mandell & Menkes, of Chicago, for appellees." }, "file_name": "0662-01", "first_page_order": 680, "last_page_order": 693 }