Formal Opinion No. 82: Assertion of Attorneys' Retaining Liens on Clients' Papers Approved April 15, 1989
| Jurisdiction | Colorado,United States |
| Citation | Vol. 06 No. 1989 Pg. 1160 |
| Pages | 1160 |
| Publication year | 1989 |
1989, June, Pg. 1160. Formal Opinion No. 82: Assertion of Attorneys' Retaining Liens on Clients' Papers Approved April 15, 1989
The Ethics Committee of the Colorado Bar Association has been requested to provide guidance to many Colorado attorneys regarding ethical considerations in asserting a retaining lien on clients' papers in their possession under CRS § 12-5-120 (1973). This opinion discusses situations in which it may not be ethically permissible to assert such a lien.
A lawyer may ethically assert a retaining lien on a client's papers, thereby keeping the papers, when the client is financially able to pay outstanding fees, but fails or refuses to do so. If, however, one or more of the following circumstances is present, then a lien may not be asserted: (1) there is no legal basis for the assertion of the lien; (2) the lawyer has been suspended or disbarred; (3) the lawyer is guilty of misconduct in the particular matter; (4) the representation is in a contingency fee case prior to completion of the case; (5) the client furnishes adequate security; (6) the client's papers are essential to the preservation of an important personal liberty interest; (7) the lawyer has withdrawn without just cause or reasonable notice; (8) the lawyer is validly discharged for professional misconduct or conduct prohibited by the Code of Professional Responsibility; and (9) the client is financially unable to post a bond or pay the fees, unless the client's inability to pay or post bond is a result of fraud or gross imposition by the client.
CRS § 12-5-120 (1973) states in pertinent part that: An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment . . . from the time of giving notice of the lien to that party.(fn1)
Attorneys are permitted to acquire interests in causes of action or the subject matters of litigation they are conducting for clients in order to protect their rights to collect fees by the assertion of legally permissible liens. DR 5-103(A)(1); EC 5-7.
A lawyer's right to assert a retaining lien is not absolute. The right may be limited by legal and ethical considerations.(fn2) In Colorado, there is no common law attorney's lien, and no lien exists except under the statute. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958). In order for an attorney to assert a retaining lien, the client must owe the attorney a...
To continue reading
Request your trial