Can a Colorado lawyer keep a client's papers as a retaining lien for unpaid fees, and when is asserting that lien ethically off limits?

Plain-English summary

Opinion 82 (adopted April 15, 1989, with a 1995 addendum) addressed the ethics of a lawyer asserting a retaining lien on a client's papers under C.R.S. section 12-5-120, which gives an attorney a lien for a general balance of compensation on a client's papers that came into the attorney's possession during the representation. The Committee concluded that a lawyer may ethically assert such a lien, and keep the papers, when a client who is financially able to pay outstanding fees fails or refuses to do so.

The Committee concluded the lawyer may not assert the lien in nine circumstances: (1) there is no legal basis for the lien (the client owes no general balance); (2) the lawyer has been suspended or disbarred; (3) the lawyer is guilty of misconduct in the particular matter (though the lawyer may assert the lien in unrelated matters); (4) in a contingency-fee case before the case is completed; (5) the client furnishes adequate security or posts an adequate bond; (6) the papers are essential to preserve an important personal liberty interest or a criminal defense; (7) the lawyer withdrew without just cause or reasonable notice; (8) the lawyer was validly discharged for professional misconduct or conduct prohibited by the Code; and (9) the client is financially unable to post a bond or pay, unless that inability results from the client's fraud or gross imposition.

The opinion grounded these limits in the Colorado Code of Professional Responsibility (the duty to deliver papers and property to which the client is entitled on withdrawal, and the duty to avoid conduct prejudicial to the administration of justice) and in Colorado case law, especially Jenkins v. District Court. It noted that the lien is a passive possessory lien that can be lost by voluntarily relinquishing the papers, that suing the client for fees forfeits exclusive possession of papers relevant to the dispute, and that, consistent with ABA Informal Opinion 1461, a lawyer should assert a retaining lien only as a last resort to prevent fraud or gross imposition by the client.

Currency note

This opinion was issued in 1989, before Colorado's 2008 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The opinion's 1995 addendum notes that the analysis should be read together with current Rules 1.8(j) and 1.16(d).

Common questions

Q: Could a Colorado lawyer keep a client's file until the client paid the bill?

A: Sometimes. The opinion concluded a lawyer may ethically assert a statutory retaining lien on a client's papers when a client who is financially able to pay outstanding fees fails or refuses to do so.

Q: When was asserting the lien off limits?

A: In nine listed situations. The opinion concluded the lien may not be asserted where, among other things, the client is financially unable to pay or post security, the papers are essential to a personal liberty interest or criminal defense, the lawyer has been suspended, disbarred, or committed misconduct in the matter, or the case is a contingency matter not yet completed.

Q: What happened to the lien if the lawyer sued the client for fees?

A: The lawyer lost exclusive possession of the relevant papers. The opinion noted that suing a client to recover fees forfeits the right to exclusive possession of the client's papers relevant to the fee dispute, which then must be produced for inspection.

Q: Could the lawyer hold papers from an indigent client?

A: Generally no. The opinion concluded that a lawyer may not assert the lien when the client is financially unable to post a bond or pay, unless that inability results from the client's own fraud or gross imposition.

Background and rules framework

The opinion interpreted C.R.S. section 12-5-120 (the statutory attorney's retaining lien on a client's papers) against the Colorado Code of Professional Responsibility, which then governed (DR 5-103(A)(1) on acquiring an interest to secure fees, DR 2-110 and EC 2-32 on returning papers on withdrawal, and DR 1-102(A)(5) on conduct prejudicial to the administration of justice). The Committee's 1995 addendum maps the analysis to the Colorado Rules of Professional Conduct, pointing to Rule 1.8(j) (acquiring a proprietary interest in the cause of action) and Rule 1.16(d) (surrendering papers and property on termination).

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.8(j) / Model Rule 1.8 (acquiring an interest in the subject of litigation; per 1995 addendum)
• Colo. RPC 1.16(d) / Model Rule 1.16 (surrender of papers on termination; per 1995 addendum)
• Colo. Code of Professional Responsibility DR 5-103(A)(1), DR 2-110, EC 2-32 (governing rules at issuance)

Statutes:

• C.R.S. section 12-5-120 (1973) (statutory attorney's retaining lien on a client's papers)

Cases:

• Jenkins v. District Court, 676 P.2d 1201 (Colo. 1984), scope and limits of the retaining lien
• People v. Garnett, 725 P.2d 1149 (Colo. 1986), lien requires a general balance of compensation owed
• MacFarlane v. Harthun, 581 P.2d 718 (Colo. 1978), lien unavailable to a suspended or disbarred lawyer

Other opinions cited:

• ABA Informal Op. 1461 (1980): assert a retaining lien only to prevent fraud or gross imposition
• D.C. Bar Op. 191 (1988): no withholding the file where the client offers adequate security

See also

• CBA Formal Op. 110: Charging Lien and Security Interest
• CBA Formal Op. 104: Surrendering the Client File
• CA Op. 2006-170: Charging Lien in a Contingency Fee Agreement

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_82_2011.pdf