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FOR PUBLICATION

APPELLANT PRO SE: DOUGLAS M. GRIMES Douglas M. Grimes PC Gary, Indiana

ATTORNEY FOR APPELLEE: BESSIE M. DAVIS Gary, Indiana

FILED
Apr 13 2011, 9:33 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
DOUGLAS M. GRIMES, Appellant, vs. VICTORIA CROCKROM, et al., Appellee. ) ) ) ) ) ) ) ) )

CLERK

No. 45A03-1008-CT-491

APPEAL FROM THE LAKE SUPERIOR COURT The Honorable John R. Pera, Judge Cause No. 45D10-0906-CT-114

April 13, 2011

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Douglas Grimes appeals the trial court's denial of his Verified Motion to Quash Subpoena Duces Tecum in this medical malpractice action. Grimes presents a single issue for our review, namely, whether the trial court erred when it denied his motion and ordered him to produce medical records to Victoria Crockrom without also providing for security for the payment of attorney's fees Crockrom owes Grimes. We affirm in part, reverse in part, and remand with instructions.1 FACTS AND PROCEDURAL HISTORY In May 2007, Crockrom retained the services of Grimes, an attorney, in her pursuit of a medical malpractice action. In the course of his representation of Crockrom, Grimes obtained certain medical records and maintained them in Crockrom's file. In April 2009, after Grimes had filed a proposed complaint for damages with the Indiana Department of Insurance, Grimes withdrew as Crockrom's counsel. Crockrom obtained new counsel, Bessie Davis, who filed a complaint for damages with the trial court on her behalf. In the course of that proceeding, Davis determined that Grimes had in his possession certain medical records that could not be obtained from any other source.2 Accordingly, Davis contacted Grimes and requested the records. Grimes responded that he would release those records if Crockrom paid the attorney's fees she owed him. And, in a letter to Davis dated November 25, 2009, Grimes stated:
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This is an interlocutory appeal as of right under Indiana Appellate Rule 14(A)(3).

Crockrom alleges injury to her left arm as a result of medical malpractice. The only medical records Davis was able to obtain from Crockrom's medical providers indicate medical treatment only involving her right arm. Crockrom maintains that Grimes is in possession of medical records showing that there was medical treatment involving her left arm, which records, she contends, are essential to her claim.

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In your letter of November 19 you stated that in your opinion "an attorney cannot ethically withhold a client's file for payment of attorney' s fees." I disagree. My office is claiming and asserting a retaining lien in the file and the documents you have requested be turned over to Victoria Crockrom, a former client. Ind. Rules of Procedure, Professional Conduct Rule 1.16(d) explicitly allows attorneys to retain the papers of clients to the extent permitted by law. Attorneys' retaining liens originated in the common law and have long been recognized as proper in Indiana. *** The case law holds that the trial court can require me to produce the documents in my possession over which I claim a retaining lien, but only if the trial court in its discretion provides for adequate security for the payment of the fees she and Mr. Crockrom owe my office. I have no intention of doing anything to prejudice Ms. Crockrom's malpractice claim. I am willing to work with your office in resolving this matter in a manner consistent with existing case law. Appellant's App. at 22-23. Thereafter, on May 6, 2010, Davis issued a subpoena duces tecum to Grimes demanding that he produce the medical records. Grimes moved to quash the subpoena. Following a hearing on Grimes' motion, the trial court denied his motion to quash and ordered him to produce the records. Crockrom's attorney's fees owed to Grimes remain unpaid. This appeal ensued. DISCUSSION AND DECISION The trial court has broad discretion in ruling on issues of discovery. Pfaffenberger v. Jackson County Reg'l Sewer Dist., 785 N.E.2d 1180, 1183 (Ind. Ct. App. 2003). We will reverse only when the trial court has abused its discretion. Id. An abuse of

discretion occurs when the trial court's decision is clearly against the logic and effect of
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the facts and circumstances before the court, or when the trial court has misinterpreted the law. Id. Grimes contends that the trial court misinterpreted the law and erred when it ordered him to produce the medical records without also providing security for the payment of attorney's fees Crockrom owes Grimes. In his November 25, 2009, letter, Grimes asserted a retaining lien over the medical records in his possession. A retaining lien under common law gives an attorney the right to retain possession of a client's documents or other property which comes into the hands of the attorney professionally, until a general balance due the attorney for professional services has been paid. See Bennett v. NSR, Inc., 553 N.E.2d 881, 882 (Ind. Ct. App. 1990) (citing Shannon v. Hendricks Circuit Court, 243 Ind. 134, 183 N.E.2d 331, 333 (1962)). In Bennett, this court observed: Retaining liens[] are widely accepted in the United States, and have been compared to mechanic's or artisan's liens. Lawyers are merely afforded the same advantage enjoyed by workmen who labor on behalf of others. It is considered equitable that lawyers be allowed to retain documents and other personal property of their clients until paid. See generally 7A C.J.S. Attorney & Client

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