The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 3, 2024
2024COA108
No. 23CA1030, Norton v. Ruebel — Attorneys and Clients —
Retaining Liens — Other Property to Which Lien Attaches —
Papers in Attorney’s Possession
A division of the court of appeals interprets section 13-93-115,
C.R.S. 2024, which grants an attorney a retaining lien on a
nonpaying client’s papers that have come into the attorney’s
“possession in the course of his or her professional employment”
and “upon money due to his or her client in the hands of the
adverse party in an action or proceeding in which the attorney was
employed.” The division holds that an attorney’s release of certain,
but not all, of the documents covered by a retaining lien does not
result in a waiver of the entire lien. The division also holds that the
public policy grounds for not enforcing a retaining lien noted in
federal case law and Colorado Bar Association Ethics Committee
Formal Opinion 82 are not inconsistent with the retaining lien
statute.
The division reverses the district court’s grant of summary
judgment to the defendant attorney and remands the case for
reconsideration of the plaintiffs’ requests for files that the attorney
contends are covered by a retaining lien.
COLORADO COURT OF APPEALS 2024COA108
Court of Appeals No. 23CA1030
Adams County District Court No. 21CV31338
Honorable Teri L. Vasquez, Judge
Michelle Norton and Brandon Thompson,
Plaintiffs-Appellants,
v.
Jeffrey Clay Ruebel, Esq. and Ruebel & Quillen, LLC, a Colorado limited
liability company,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE LIPINSKY
Freyre and Schutz, JJ., concur
Announced October 3, 2024
Preeo Silverman Green & Egle, P.C., Eldon E. Silverman, Centennial, Colorado;
Burg Simpson Eldredge Hersh & Jardine, P.C., D. Dean Batchelder,
Englewood, Colorado, for Plaintiffs-Appellants
McConnell Van Pelt, LLC, Michael T. McConnell, Kellsey A. Hansen, Denver,
Colorado, for Defendants-Appellees
¶1 Attorneys are generally entitled to receive payment for their
services. Abraham Lincoln, a legendary litigator as well as one of
our country’s greatest presidents, acknowledged that there is
nothing crass or dishonorable in an attorney’s efforts to receive
payment for services rendered: “The matter of fees is important, . . .
far beyond the mere question of bread and butter involved.
Properly attended to, fuller justice is done to both lawyer and
client.” Harry E. Pratt, Personal Finances of Abraham Lincoln, at 25
(1943), https://perma.cc/KW8Q.
¶2 But payment of an attorney’s fees is not always “[p]roperly
attended to.” Id. For this reason, the Colorado General Assembly
enacted two statutes that authorize lawyers to place liens on a
nonpaying client’s property, files, and funds, sections 13-93-114
and -115, C.R.S. 2024. This case concerns the latter statute, which
grants a lawyer a retaining lien on “any papers of his or her client
that have come into his or her possession in the course of his or her
professional employment” and “upon money due to his or her client
in the hands of the adverse party in an action or proceeding in
which the attorney was employed.” § 13-93-115.
1
¶3 Few published cases have interpreted the Colorado retaining
lien statute, however.
¶4 In this case, we explore various issues relating to retaining
liens and, among other holdings, decide that the release of certain,
but not all, of the documents covered by such a lien does not result
in a waiver of the entire lien. In addition, we provide guidance to
the district court in determining the enforceability of the retaining
lien that is the principal subject of this appeal.
¶5 Plaintiffs, Michelle Norton and Brandon Thompson (jointly, the
Norton parties), appeal the district court’s order granting summary
judgment in favor of defendants, Jeffrey Clay Ruebel, Esq., and
Ruebel & Quillen, LLC, a Colorado limited liability company
engaged in the practice of law (jointly, Ruebel). In addition to
challenging the grant of summary judgment to Ruebel, the Norton
parties argue that the court erred by denying their requests for
production of Ruebel’s files (the subject files) regarding One Stop
Construction and Landscapes, Inc. Ruebel contends that he had
the right to withhold production of the subject files to the Norton
parties because he had placed a retaining lien on them.
2
¶6 We reverse the grant of summary judgment to Ruebel and
remand for further proceedings consistent with this opinion.
I. Background and Procedural History
¶7 Although the Norton parties pleaded detailed facts regarding
several related transactions, we set forth here only those allegations
relevant to our analysis.
¶8 The Norton parties purchased stock in One Stop, a corporation
that Ruebel represented and that Jesse Alfaro owned. The Norton
parties subsequently became the controlling shareholders, officers,
and directors of One Stop. One Stop defaulted on a $2.5 million
line of credit from Bank of Colorado, which the Norton parties and
Alfaro had guaranteed. One Stop and the guarantors entered into a
forbearance agreement that, among other provisions, increased the
interest rate on the amount due to Bank of Colorado.
¶9 Counsel for Bank of Colorado subsequently informed Ruebel
that One Stop was in default of the line of credit. The attorney
asked Ruebel which borrowers and guarantors he represented.
Ruebel informed counsel for Bank of Colorado that he represented
One Stop, Alfaro, and the Norton parties, and he negotiated on their
behalf an addendum to the forbearance agreement.
3
¶ 10 Pursuant to the addendum, an entity known as SALMAC LLC
and Robert McAllister purchased the assets of One Stop in
exchange for a $2.6 million promissory note payable to One Stop.
The note was endorsed to Bank of Colorado. SALMAC and
McAllister agreed to pay $900,000 to Bank of Colorado in monthly
installments and endorsed the note secondarily to OSC Holdings,
LLC, which would receive SALMAC and McAllister’s monthly
payments after Bank of Colorado had been paid in full.
¶ 11 After SALMAC and McAllister stopped making payments on
the note, Bank of Colorado filed a lawsuit seeking replevin and
money judgments against, among other defendants, One Stop, OSC
Holdings, and Alfaro. The Norton parties were not parties to Bank
of Colorado’s lawsuit.
¶ 12 In that lawsuit, Bank of Colorado obtained a money judgment
against One Stop (as well as against certain of the other defendants)
in the amount of $912,213.82. According to the Norton parties,
after Bank of Colorado took steps to enforce its judgment, One Stop
was left with no assets and was dissolved.
¶ 13 The Norton parties, in their individual capacities, brought a
legal malpractice action against Ruebel, asserting negligence and
4
breach of fiduciary duty claims. In their complaint, the Norton
parties asserted, as relevant here, that
• Ruebel had acted as their attorney;
• in response to the Norton parties’ inquiries, Ruebel
misrepresented One Stop’s financial condition;
• Ruebel failed to protect the Norton parties’ interests;
• Ruebel represented both Alfaro as seller and the Norton
parties as buyers in connection with the Norton parties’
purchase of stock in One Stop; and
• the Norton parties lost nearly their entire investment in
One Stop as a consequence of Ruebel’s misconduct.
¶ 14 The Norton parties sought a judgment in the amount of
approximately $1.4 million — representing the sum they allegedly
lost through their investment in One Stop.
¶ 15 During the litigation, the Norton parties requested that Ruebel
produce the subject files. Ruebel refused to do so. In a letter from
Ruebel’s counsel to counsel for the Norton parties, Ruebel asserted
a retaining lien against the subject files under section 13-93-115 on
the grounds that “One Stop owes [Ruebel] approximately $100,000
in unpaid legal fees.” Notably, Ruebel’s counsel stated in the letter
5
that the Norton parties did not have an attorney-client relationship
with Ruebel but, rather, were “constituents” (i.e., officers and
directors) of One Stop, Ruebel’s client. Ruebel’s counsel did not say
in the letter that the Norton parties owed Ruebel any attorney fees.
¶ 16 The Norton parties filed a notice of discovery dispute in which
they moved for a determination of the effect of the retaining lien on
their request for the subject files. The Norton parties argued that
Ruebel “waived any claim to a retaining lien” in August 2020 when,
at Michelle Norton’s request, Ruebel provided her with a portion of
the subject files — “289 emails with voluminous attachments
covering a [six-month period] during pivotal periods of joint
representation” (the 2020 documents) — without claiming that the
2020 documents were subject to a retaining lien. The Norton
parties also argued that Ruebel should “otherwise be prohibited
from asserting the lien” as a “sword” to “frustrate the discovery
process.”
¶ 17 At a hearing on the discovery dispute, the Norton parties also
argued that, even in the absence of a waiver, the court should not
enforce Ruebel’s retaining lien because they and One Stop were
financially unable to pay Ruebel’s unpaid fees. The Norton parties
6
requested an evidentiary hearing to address the factual basis for
their asserted inability to pay the outstanding fees.
¶ 18 Ruebel responded that he had not waived the retaining lien
when he provided the 2020 documents to Michelle Norton because
he disclosed those documents to her in her capacity as his
“corporate client’s officer[] during the course of representation”
before the fee dispute arose and that the Norton parties’ “sword”
argument failed because the court never found that Ruebel had
engaged in any misconduct.
¶ 19 At the conclusion of the hearing, the court found “there [wa]s
an appropriate and valid retaining lien on the files of One Stop held
by [Ruebel]”; that the lien had “not been waived or lost based on
any of the arguments asserted by [the Norton parties]”; and that, if
Ruebel would not produce the subject files, “then no part of that file
w[ould] be permitted usable by either party in this case, either in
pursuit or defense of their claims.” The court also denied the
Norton parties’ request for an evidentiary hearing.
¶ 20 The Norton parties later filed a second notice of discovery
dispute regarding their request for production of the subject files, in
which they argued that “two recent developments provide[d]
7
grounds for an order requiring” Ruebel to produce the subject files.
The Norton parties argued that, even if Ruebel had a valid retaining
lien at one time, he “waived it by designating [Jeffrey Clay Ruebel]
as an expert for trial” and by “disclosing a document from the file,”
thus opening the door to production of the subject files to the
Norton parties. Ruebel responded that he was not relying on the
subject files for Jeffrey Clay Ruebel’s expert testimony and that
Ruebel had received the document to which the Norton parties
referred only after the inception of the case. The court conducted
another hearing on the retaining lien issue and again found in favor
of Ruebel. Thus, the Norton parties were unable to obtain the
subject files.
¶ 21 Ruebel filed a motion for summary judgment, arguing that the
Norton parties’ claims failed as a matter of law because they could
not establish that Ruebel’s conduct caused them damages. The
court granted the motion and entered summary judgment against
the Norton parties.
8
II. Analysis
A. The Retaining Lien
¶ 22 We first address the Norton parties’ arguments regarding
Ruebel’s retaining lien and the subject files.
¶ 23 The Norton parties contend that the court erred by
“concluding that Ruebel’s assertion of a retaining lien against One
Stop preempts all discovery” regarding the subject files. The Norton
parties ask us to reverse the court’s orders denying their requests
for production of the subject files and to remand for further
proceedings.
¶ 24 We hold that the court did not apply the correct legal standard
when analyzing whether Ruebel’s retaining lien precluded
production of the subject files to the Norton parties. Because
documents contained in the subject files may be relevant to the
issue of causation (as well as to the Norton parties’ cross-
examination of Jeffrey Clay Ruebel in his capacity as an expert), we
reverse the grant of summary judgment to Ruebel, as we discuss
further infra Part II.B, and remand for further consideration of the
Norton parties’ requests for the subject files, consistent with this
opinion.
9
1. Standard of Review
¶ 25 We review the court’s interpretation and application of the
retaining lien statute and case law de novo. See Gallegos v. Colo.
Ground Water Comm’n, 147 P.3d 20, 28 (Colo. 2006). We review
discovery rulings — including decisions about production of files
subject to a retaining lien — for an abuse of discretion. See In re
People in Interest of J.P.,
2023 CO 57, ¶ 17,
538 P.3d 337, 343;
Jenkins v. Dist. Ct.,
676 P.2d 1201, 1203 (Colo. 1984). A court
abuses its discretion if its decision is manifestly arbitrary,
unreasonable, or unfair or when it misapplies or misconstrues the
law. J.P., ¶ 17, 538 P.3d at 343.
2. The Law Governing Retaining Liens
¶ 26 An attorney has a statutory right to retain “any papers” of his
client that come into his possession in the course of his
professional employment until compensation is paid. § 13-93-115.
This retaining lien attaches once the attorney “has completed
compensable work.” People ex rel. MacFarlane v. Harthun, 581 P.2d
716, 718 (Colo. 1978). It allows the attorney to retain the client’s
“papers, books, documents, securities, and money” until “the
general balance due him for legal services is paid, whether such
10
services grew out of the special matters then in his hands, or other
legal matters.” Collins v. Thuringer, 21 P.2d 709, 710 (Colo. 1933).
The purpose of the retaining lien is to aid the attorney in recovering
the fees and costs due him for the services performed for the client.
See In re Att’y G.,
2013 CO 27, ¶ 16,
302 P.3d 248, 251; accord
Pomerantz v. Schandler,
704 F.2d 681, 683 (2d Cir. 1983) (“The
purpose of the lien is to assist the attorney in preventing a client
from refusing or failing to pay charges justly due.”).
¶ 27 Although section 13-93-115 does not address circumstances
under which a court will not enforce a retaining lien, the Tenth
Circuit Court of Appeals and the Ethics Committee of the Colorado
Bar Association noted that courts will not enforce retaining liens for
reasons “grounded on public policy.” Jenkins v. Weinshienk,
670
F.2d 915, 919 (10th Cir. 1982); Colo. Bar Ass’n Ethics Comm.,
Formal Op. 82 (1989) (hereinafter, CBA Formal Op. 82) (“A lawyer’s
right to assert a retaining lien is not absolute. The right may be
limited by legal and ethical considerations.”). We are not bound by
these authorities. See Perez v. By the Rockies, LLC,
2023 COA 109,
¶ 14,
543 P.3d 1054, 1056 (cert. granted Aug. 19, 2024) (Although a
state court can consider federal decisions “as persuasive authority,
11
we are not bound by them when interpreting state statutes.”);
Gafcon, Inc. v. Ponsor & Assocs., 120 Cal. Rptr. 2d 392, 411 (Ct.
App. 2002) (holding that courts are not bound by a state ethics
opinion). Nonetheless, Weinshienk and CBA Formal Op. 82 are
persuasive authorities that we may consider. Ruebel does not cite
any authority, from any jurisdiction, indicating that courts rigidly
apply retaining lien statutes, such as section 13-93-115, when
application of the statute would result in an unjust or inequitable
outcome.
¶ 28 Contrary to Ruebel’s argument, we perceive no inconsistency
between the language of section 13-93-115 and a court’s decision
not to enforce a retaining lien to avoid this type of outcome. The
statute merely addresses how a retaining lien is created and the
papers and moneys covered by such a lien:
An attorney has a lien for a general balance of
compensation upon any papers of his or her
client that have come into his or her
possession in the course of his or her
professional employment and upon money due
to his or her client in the hands of the adverse
party in an action or proceeding in which the
attorney was employed from the time of giving
notice of the lien to that party.
12
§ 13-93-115. It does not speak to the circumstances under which a
retaining lien may, or may not, be enforced and does not suggest
that a retaining lien is absolute. See Antero Treatment LLC v. Veolia
Water Techs., Inc., 2023 CO 59, ¶ 16,
546 P.3d 1140, 1146
(explaining that, to determine whether a statute and a court rule
are inconsistent, the court must first “determine whether the rule
and statute irreconcilably conflict”).
¶ 29 Accordingly, we agree with the Tenth Circuit that, after a court
determines that an attorney has a retaining lien, the court must
also determine whether assertion of the lien is “in such conflict with
important principles that it must be relinquished when balanced
against considerations of public policy.” Weinshienk,
670 F.2d at
919; cf. Jenkins, 676 P.2d at 1205 (weighing the attorney’s interest
in his retaining lien against other interests, such as “the highly
material nature of the subject of the lien, the implications of a
lawyer’s duties toward his client, and the importance of promoting
the truth-seeking functions of discovery rules”).
¶ 30 For example, as CBA Formal Opinion 82 notes, a court will not
enforce an attorney’s retaining lien if (1) there is no legal basis for
asserting the lien; (2) the client who owes the fees furnishes
13
adequate security or posts an adequate bond; (3) the client’s papers
are essential to preserve an important personal liberty interest of
the client; or (4) the client is financially unable to post a bond or
pay the attorney. See CBA Formal Op. 82; Weinshienk, 670 F.2d at
920. The Ethics Committee opined that, while a “lawyer may
ethically assert a retaining lien on a client’s papers . . . when the
client is financially able to pay outstanding fees, but fails or refuses
to do so,” a lawyer may not assert a retaining lien if “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.” CBA Formal Op. 82 (emphasis added); see also ABA
Comm. on Ethics & Pro. Resp., Informal Op. 1461 (1980)
(hereinafter, ABA Informal Op. 1461), withdrawn, ABA Comm. on
Ethics & Pro. Resp., Informal Op. 86-1520 (1986).
¶ 31 But even more fundamental questions are presented when an
attorney seeks to enforce a retaining lien: Is the party seeking the
documents covered by the lien a client, a former client, or a third
party? Relatedly, does the requesting party owe fees to the
attorney? Thus, in deciding whether to enforce a retaining lien, a
court should first determine the relationship between the party
14
seeking the documents and the attorney and whether the party
against whom the lien is asserted owes any fees to the attorney.
¶ 32 Different considerations apply in determining whether a client
or a third party is entitled to documents covered by a retaining lien.
See, e.g., Weinshienk, 670 F.2d at 920 (“If the only interests at
stake . . . were those of the attorney and his . . . former clients, the
case would present no problem; the lien would be allowed to stand.
But also involved is [the third party’s] interest . . . in a speedy
resolution of his claims.”); Shaffer v. Charleston Area Med. Ctr., Inc.,
485 S.E.2d 12, 16 (W. Va. 1997) (noting that an “attorney’s lien for
professional services may not be enforced in equity against a
stranger” to the matter in which the lawyer’s services were
rendered).
¶ 33 While the broad wording of section 13-93-115 suggests that a
retaining lien generally follows the files, and not the client, under
certain circumstances, it would be inequitable to deny a third party
access to the papers covered by the retaining lien. Cf. Weinshienk,
670 F.2d at 920 (“If [the third party] needs something in the
[attorney’s] file to prove his case [against the debtor client], he can
get it by discovery or subpoena notwithstanding the attorney’s
15
retaining lien.”); In re Garcia, 69 B.R. 522, 525 (Bankr. E.D. Pa.)
(comparing situations where courts have allowed attorneys to assert
retaining liens against third parties with situations where it would
be inequitable to do so), aff’d,
76 B.R. 68 (E.D. Pa. 1987), aff’d,
838
F.2d 460 (3d Cir. 1987) (unpublished table decision); CBA Formal
Op. 82 (“[A]n attorney who has asserted a lien may be compelled to
produce documents to the client’s adversary, since it would be
inequitable to deny a litigant access to relevant and perhaps
essential proof, merely because the opposing party had failed to pay
attorney’s fees.”).
¶ 34 In addition, we agree with the Norton parties that an
“attorney’s ability to assert his lien can be waived or lost.”
MacFarlane,
581 P.2d at 718. Waiver is “the intentional
relinquishment of a known right.” In re Marriage of Kann,
2017
COA 94, ¶ 55,
488 P.3d 245, 254. An attorney expressly waives a
retaining lien by, for example, giving the former client
“unconditional assurances that the documents would be returned.”
People v. Brown,
840 P.2d 1085, 1088 (Colo. 1992). A waiver may
also “be implied from a party’s conduct if the conduct is free of
ambiguity and clearly manifests the intent not to assert the right.”
16
Kann, ¶ 55, 488 P.3d at 254. Further, an attorney may implicitly
waive a retaining lien by surrendering possession of files covered by
the lien because the lien “depends upon possession and attaches
only to papers actually in [the attorney’s] possession.” Reynolds v.
Warner, 258 N.W. 462, 464 (Neb. 1935) (applying Colorado law).
3. The Court Did Not Consider All Relevant Factors in Deciding
that the Norton Parties Were Not Entitled to the Subject Files
¶ 35 The Norton parties contend that the court erred by concluding
that Ruebel’s retaining lien “barred all discovery of [the subject
files], that the lien was effective even though neither One Stop nor
[the Norton parties] could pay the lien amount, and that Ruebel did
not waive his right to the lien when he produced documents from
the file without mention of the lien.”
¶ 36 We first note that the court did not determine the threshold
issue of whether the Norton parties were clients or former clients of
Ruebel who owed attorney fees to him. At oral argument, counsel
for the Norton parties suggested there is an ongoing dispute as to
whether they were Ruebel’s clients, while counsel for Ruebel said
that the Norton parties became Ruebel’s clients at the time of the
17
negotiations regarding the forbearance agreement following One
Stop’s default on the Bank of Colorado line of credit.
¶ 37 But even if the Norton parties were Ruebel’s clients at one
time, we cannot determine from the record whether they are liable
for any of Ruebel’s unpaid fees or whether One Stop alone is liable
for those fees. Similarly, we cannot tell from the record whether
any of Ruebel’s clients (or former clients) in this case are financially
unable to pay Ruebel’s outstanding attorney fees or post a bond or
whether their inability to pay or post a bond is a result of fraud or
gross imposition. Without knowing these key facts, we cannot
adjudicate whether the Norton parties are entitled to production of
the subject files, even if Ruebel placed a retaining lien on them.
¶ 38 Second, we dispense with the Norton parties’ waiver argument.
They provide no authority suggesting that a waiver of a retaining
lien as to some papers covered by the lien results in a waiver of the
lien as to the remaining papers.
¶ 39 Because a retaining lien “depends upon possession,”
Reynolds, 258 N.W. at 464, we hold that an attorney does not waive
a retaining lien in its entirety by releasing a portion of the files
covered by the lien to a client or a third party. Thus, Ruebel did not
18
waive his retaining lien on those portions of the subject files that he
did not produce to Michelle Norton — even if Ruebel waived the
retaining lien as to the 2020 documents by providing them to her.
¶ 40 Additionally, Ruebel’s designation of Jeffrey Clay Ruebel as a
non-retained expert did not amount to conduct “free of ambiguity
and clearly manifest[ing]” Ruebel’s intent not to assert his right to
retain the subject files. Kann, ¶ 55, 488 P.3d at 254. For this
reason, Ruebel did not waive his right to assert a retaining lien on
the subject files by designating Jeffrey Clay Ruebel as an expert.
¶ 41 In sum, we agree with the Norton parties that the court
misinterpreted the law when it analyzed the scope and applicability
of Ruebel’s retaining lien. Specifically, the court construed the
following language in Weinshienk too narrowly: “An exception is also
recognized when the client is financially unable to post a bond or
pay — in such cases the client’s failure is not deliberate and
requiring the client to pay may hinder its ability to secure other
representation.” Weinshienk, 670 F.2d at 920 (emphasis added).
Because the court found that the Norton parties did not make an
“adequate representation” that “the inability to post a bond may
hinder [their] ability to secure other representation,” the court
19
concluded that none of the exceptions discussed in Weinshienk
applied.
¶ 42 We do not read this dictum in Weinshienk to suggest that a
client’s inability to pay can defeat a retaining lien only when it
hinders the client’s ability to secure other representation. Neither
of the authorities that Weinshienk cites for the inability-to-pay
exception involved a situation where the lien impeded an
impecunious client from securing substitute representation. See
generally Hernandez v. Nierenberg, 179 N.Y.S.2d 322, 324-25 (Sup.
Ct. 1958); ABA Informal Op. 1461. Rather, the Weinshienk
language illustrates but one non-exhaustive example of prejudice to
a client that could result from the assertion of a retaining lien if the
client’s inability to pay the outstanding fees is not deliberate.
¶ 43 Our reading of Weinshienk is consistent with CBA Formal Op.
82, which does not mention the client’s ability to secure other
representation when describing the inability-to-pay exception.
Rather, it says only that an attorney may not ethically assert a
retaining lien when “the client is financially unable to post a bond
or pay, unless the client’s inability to pay or post bond is a result of
20
fraud or gross imposition by the client.” CBA Formal Op. 82
(quoting Weinshienk, 670 F.2d at 920).
¶ 44 Because the court misinterpreted Weinshienk, the court did
not fully consider or weigh the competing interests, ethical
considerations, and considerations of public policy when it
concluded that no exception to the retaining lien applied. See
Weinshienk,
670 F.2d at 919; Jenkins, 676 P.2d at 1205; CBA
Formal Op. 82. Those considerations include whether the retaining
lien is unenforceable — even if the Norton parties owe attorney fees
to Ruebel — to avoid undue prejudice to the Norton parties in their
litigation against Ruebel. See Marsh, Day & Calhoun v. Solomon,
529 A.2d 702, 706 (Conn. 1987) (“[B]arring unusual circumstances,
such as prejudice to the rights of a client, an attorney is under no
obligation to release the files of a client unless there has been
payment, the furnishing of adequate security or, of course, a
mutually acceptable arrangement between the parties.”) (emphasis
added); CBA Formal Op. 82 (noting that a withdrawing attorney
should protect the welfare of the client by endeavoring to minimize
the possibility of harm to the client); see also Weinshienk,
670 F.2d
at 920 (explaining that inconvenience to the former clients “is the
21
essence — the power and the bite — of the attorney’s retaining lien”
and that requiring a retaining lien to give way “because it hampers
the clients’ defense of their suit . . . would emasculate the retaining
lien as it applies to general balances owed attorneys”). There is a
material distinction between an action that materially prejudices a
former client and one that merely causes inconvenience or hampers
the former client’s defense.
¶ 45 The factual findings and inquiries pertinent to this analysis
include
• whether the Norton parties, in their individual capacities
(the capacities in which they filed this action), were
clients of Ruebel for purposes of the retaining lien
analysis;
• whether the Norton parties, or only One Stop, owe Ruebel
the attorney fees that are the subject of the retaining lien;
• whether Ruebel’s assertion of the retaining lien against
the Norton parties is necessary to protect Ruebel’s
interest in receiving payment for the outstanding legal
fees;
22
• the value of Ruebel’s interest in the lien and whether
whichever clients or former clients of Ruebel owe the
subject attorney fees are able to pay them or to post a
bond that would adequately secure Ruebel’s interest in
payment;
• whether enforcing the retaining lien against the Norton
parties would materially prejudice their ability to litigate
against Ruebel in this action; and
• whether doing so may materially prejudice the Norton
parties’ ability to cross-examine Jeffrey Clay Ruebel in
his capacity as an expert witness.
See Jenkins, 676 P.2d at 1204 (requiring production of documents
in the attorney’s file notwithstanding a retaining lien covering the
documents in an action involving an attorney fees dispute).
¶ 46 While Ruebel bears the burden of establishing the existence of
the retaining lien, see In re Marriage of Mitchell, 55 P.3d 183, 185
(Colo. App. 2002), the Norton parties bear the burden of showing
that assertion of the lien is “in such conflict with important
principles that it must be relinquished when balanced against
considerations of public policy.” Weinshienk,
670 F.2d at 919; cf.
23
Pomerantz, 704 F.2d at 683 (requiring the client to make a clear
showing of “his inability to pay the legal fees or post a reasonable
bond”).
¶ 47 Thus, on remand, the court must reconsider the Norton
parties’ requests for the subject files, consistent with this opinion.
The court may, in its discretion, order supplemental briefing,
conduct an evidentiary hearing, or take such other steps that would
aid the court in determining whether Ruebel’s retaining lien bars
production of the subject files to the Norton parties.
B. The Grant of Summary Judgment to Ruebel
1. Standard of Review and the Law Governing Grants of
Summary Judgment
¶ 48 We review a grant of summary judgment de novo. Rocky
Mountain Planned Parenthood, Inc. v. Wagner, 2020 CO 51, ¶ 42,
467 P.3d 287, 295. Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” C.R.C.P. 56(c).
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¶ 49 “The burden of establishing the nonexistence of a genuine
issue of material fact is on the moving party.” Cont’l Air Lines,
Inc. v. Keenan, 731 P.2d 708, 712 (Colo. 1987). “In a case where a
party moves for summary judgment on an issue on which [it] would
not bear the burden of persuasion at trial, [its] initial burden of
production may be satisfied by showing the court that there is an
absence of evidence in the record to support the nonmoving party’s
case.”
Id. “Once the moving party has met this initial burden of
production, the burden shifts to the nonmoving party to establish
that there is a triable issue of fact.”
Id. at 713. “If the nonmoving
party cannot muster sufficient evidence to make out a triable issue
of fact on his claim, a trial would be useless and the moving party is
entitled to summary judgment as a matter of law.”
Id.
¶ 50 “In considering whether summary judgment is appropriate, a
court grants the nonmoving party the benefit of all favorable
inferences that may reasonably be drawn from the undisputed facts
and resolves all doubts against the moving party.” Rocky Mountain
Planned Parenthood, Inc., ¶ 20,
467 P.3d at 291.
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2. We Reverse the Grant of Summary Judgment to Ruebel
Because We Are Remanding the Case for
a Redetermination of Whether the Norton Parties Are Entitled
to the Subject Files
¶ 51 Because we are remanding the case for further proceedings on
whether Ruebel is entitled to withhold the subject files from the
Norton parties, we cannot say there are no disputed issues of
material fact regarding whether Ruebel’s actions caused the
damages that the Norton parties seek to recover in this action. If,
after conducting the analysis of Ruebel’s retaining lien outlined
above, the court concludes that the Norton parties are entitled to
obtain the subject files, the Norton parties will be able to scour the
subject files for documents that may support their causation theory
or any of the other elements of their claims against Ruebel. Any
such documents may be relevant to the merit of the Norton parties’
claims.
¶ 52 Alternatively, the court may determine that, even after
undertaking the proper analysis, the Norton parties are not entitled
to any of the subject files. And even if the court decides that the
Norton parties are entitled to the subject files, no documents in
those files may support the Norton parties’ claims. If so, Ruebel
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could refile his motion for summary judgment or such other
dispositive motion he believes is appropriate. We express no
opinion on the merits of any such motion.
III. Disposition
¶ 53 We reverse the grant of summary judgment to Ruebel and
remand to the court for reconsideration of the Norton parties’
requests for the subject files, consistent with this opinion.
JUDGE FREYRE and JUDGE SCHUTZ concur.
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