specially concurring.
I concur in the portion of the court’s opinion which recognizes the existence of an attorney’s retaining lien. I also concur in the remand of the case to the superior court for determination of the application of the lien to various items in the file. I write because I am in the anomalous position of also agreeing with many of the fears expressed by the dissent with respect to the danger, real and apparent, that if recognized in Arizona the lien could be used in ways or for purposes that violate the ethical obligations which lawyers owe clients. Fully recognizing the necessity of obviating such mischief, I feel, nevertheless, that the problems may be avoided without abolishing the retaining lien concept in totality.
Properly characterized and limited, the lien cannot be used to accomplish results contrary to public policy and can have perfectly proper uses. The nature of the lien and the legitimate purposes which it serves are well described in the following words:
A retaining lien is akin to a lien of an artisan or mechanic, runs against the property, not against the attorney’s debt- or, and affords the attorney the same advantage as has any other workman who is entitled to retain things upon which he has worked until he is paid for his work.
7A C.J.S. Attorney & Client § 358, at 712 (1980) (footnote omitted). The lien has been almost universally recognized where the question has been raised. See Annot., Rights and remedies of client as regards papers and documents on which attorney has retaining lien, 3 A.L.R.2d 148 (1949). The dissent has not cited, nor have I found, a ease explicitly refusing to recognize the existence of the lien under all circumstances. The California case cited in the dissent, Academy of California Optometrists, Inc. v. Superior Court for the County of Sacramento, 51 Cal.App.3d 999, 124 Cal.Rptr. 668 (1975), did not reach an unequivocal holding that the lien does not exist in California. It held, rather, that the contractual lien considered in that case would not be given effect where recognition would result in sanctioning unethical conduct — a result against public policy. The dissent here goes further and argues “that an attorney’s retaining lien is contrary to an attorney’s ethical duty to avoid foreseeable prejudice to the client ... and should be rejected by the courts of Arizona.”
I would not go so far, though I do agree that the ethical concerns are both important and paramount. In my view, however, those ethical concerns are already protected by existing case law. For instance, both the opinion of the court and the dissent express concerns that the lien should not be used for the purpose of forcing the client to settle a disputed obligation in order to obtain books, papers or documents belonging to the client and for which the client has an urgent need. See Midvale Motors, Inc. v. Saunders, 21 Utah 2d 181, 442 P.2d 938 (1968), for an example of a case in which a court condoned such misuse. However, the better reasoned cases hold that where the assertion of the lien would have such an improper result, courts need not give it *548effect. See Miller v. Paul, 615 P.2d 615 (Alaska 1980); Academy of California Optometrists, supra; People v. Radinsky, 182 Colo. 259, 512 P.2d 627 (1973) (improper use of the claim of an attorney’s retaining lien in order to extort fees despite prejudice to the client’s cause is an ethical violation justifying disbarment).
Other principles established by case law solve many if not all of the problems which may be imagined. For instance, case law holds that the lien is “defeated or lost when the attorney unjustifiably terminates his relationship with the client, or when the attorney is justifiably discharged by the client.” 7 Am.Jur.2d Attorneys at Law § 321, at 334 (1980); Miller v. Paul, supra; see also cases collected in Annot., 3 A.L.R.2d, supra, § 5, at 159-60.
Further, as the opinion of the court indicates, the lien should not and does not attach to items which come into the attorney’s hands for purposes inconsistent with the attachment of a possessory lien. Trial exhibits, such as those involved in the case at bench, are an example. Other examples are where the attorney comes into the possession of funds or other property as a trustee, Akers v. Akers, 233 Minn. 133, 46 N.W.2d 87 (1951), or pursuant to court order, Severdia v. Alaimo, 41 Cal.App.3d 881, 116 Cal.Rptr. 405 (1974). It has also been held that even though the lien attaches, a court may order the attorney to produce the material for inspection where the interests of judicial administration so require. Browy v. Brannon, 527 F.2d 799 (7th Cir.1976). In summary, the law recognizes that the lien does not attach whenever the recognition of the possessory right is inconsistent with public policy, with the attorney’s obligations to the client, or the attorney’s duties to the court.
In my view, it is unwise to abolish or totally refuse to recognize the lien. Unfortunately, there are occasions when some lawyers seek to take advantage of clients, but there are also many instances where clients seek to take advantage of lawyers or where the assertion of the lien is fair and proper and does not violate ethical obligations. In those situations I think it not too much to expect that lawyers should have the same right to a possessory lien as that which is possessed by factors, bankers, and other professions. In addition, lawyers should be entitled to assert the same protection by reason of a possessory lien as are others when a client has become insolvent, has taken the benefit of a bankruptcy proceeding, has made an assignment for the benefit of creditors or has had a receiver appointed. See 7 Am.Jur.2d, supra, at 334-35; Browy v. Brannon, supra. Depriving lawyers of all protection will force many to insist upon payment in advance, a practice which may also present ethical and policy problems.
I therefore agree with the proposition that attorneys’ retaining liens are recognized in this state. Since the practice of law requires that the interests of the client be considered before those of the lawyer, I would hold that the lien will not be recognized or allowed to attach in situations where its recognition or attachment is contrary to the ethical duties which the lawyer owes a client or in the other situations recognized by case law and discussed above. Thus, I also join in refusing to recognize the attachment of the lien to the documents, papers and records of the client which were given to the lawyer for the purpose of trial preparation or actual use at trial. Nor, under the circumstances of this case, would I recognize attachment of the lien with respect to any documents necessary for the efficient presentation of the client’s cause at trial. The case at bench raises the issue of the applicability of these exceptions. Thus, I concur in remand, but agree with the dissent that the burden should be on the attorney to itemize the material in his or her possession to establish that such items are properly subject to the possessory lien.