Obtaining Judgment Through an Attorney’s Lien In Colorado Springs, CO

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Attorneys have recourse if clients do not pay the bill through an attorney’s lien. A charging lien gives an attorney a first lien for attorney fees on any money or property obtained by the attorney. C.R.S. § 12-5-119. Notice of the lien is provided by filing a notice with the clerk of the court where the case is pending. The notice may be filed while the attorney is counsel of record or after withdrawal, and it may be enforced in the underlying action, or in a separate civil action. C.R.S. § 12-5-119.

The lien process involves filing a motion to determine the validity of the lien and for entry of judgment after the notice is filed. If not previously filed, the notice of lien should be filed with the motion. It is also possible to file an affidavit of attorney fees with the motion so that the court has complete information with which to decide the issue. However, those can be reserved for use as evidence in the event that a hearing is set. A proposed order should also be filed.

There are some ethical considerations related to collection. The attorney should withdraw as counsel of record before filing the motion, since the attorney is seeking a judgment against the client. After withdrawing, it will likely be necessary to call the court clerk to add the attorney as an interested party to permit electronic filing and notice. Otherwise the attorney will not be able to file, nor able to see the progress of the case. Service must then made on each party and/or attorney and personal service is not necessary.

The validity of the debt is initiated through standard motion practice meaning the motion, response and reply process. The motion should be granted if no response is filed. If a response is filed, the court should set a hearing if necessary. At hearing, the attorney will have to establish that the fees are owed and potentially the reasonableness of the fees. Common evidence is the fee agreement, billing statements, and the attorney’s affidavit of fees. In some cases, it may be necessary to present expert testimony as to the reasonableness of the fees charged.

When determining the reasonableness of attorney's fees, courts consider various factors, including the time and effort expended, the complexity of the case, and the customary fees in the community. Testimony from the attorney who performed the work is often essential. Additionally, the client may also testify, particularly if they are challenging the reasonableness of the fees. Clients often testify as to their understanding of the fee agreement, the value of the services received, and any disputes regarding the work performed.

Expert testimony on the reasonableness of fees is not required, however may be offered by either party to support or challenge the reasonableness of the fees. When the reasonableness of fees is disputed and an expert affidavit is submitted, an evidentiary hearing is required to resolve any factual disputes. Roberts v. Adams, 47 P.3d 690 (Colo. App. 2001).

There are limitations on assets and income to which a lien may attach. An attorney’s lien must attach to some income or asset permissible for collection, such as property or a marital income award such as cash or even spousal maintenance. It can not attach to child support. Therefore, attorney’s liens are not viable for parenting matters. The lien also covers unreimbursed costs. Kallsen v. Big Horn Harvestore Sys., 761 P.2d 291 (Colo. App. 1998). The attorney’s lien may attach to real property, if it has been a subject of the underlying litigation. However, the client has a homestead exemption for collection purposes that protects some home equity. In re Dickinson, 185 B.R. 840 (Bankr. D. Colo. 1995).

Additionally, an attorney may assert a retaining lien under certain circumstances on the client’s case file, subject to ethical limitations discussed above. C.R.S. § 12-5-120, C.R.S.§ 12-5-119. A common scenario is that the attorney can not assert the lien if the client can not pay the attorney’s bill. The retaining lien also applies to money due the client in the possession of the other party.

If the lien is not resolved in the underlying action, there is another collection option. As an alternative to an attorney’s lien in the underlying case, an attorney can obtain a judgment in an independent civil action by filing a civil action and serving a summons and complaint in county or district court. C.R.C.P. 4, C.R.C.P. 304.

There is a waiting period to enforce the lien. In district court, there is an automatic stay on proceedings to enforce a judgment for 14 days after the entry of a judgment. C.R.C.P. 62. There is no stay of execution for judgments entered in the county court. It is advisable to obtain a transcript of judgment immediately following entry of the judgment. Upon receipt, it should be sent for recording to the clerk and recorder of any county in which the defendant resides and owns real property.

It may be necessary to obtain information about the debtor’s assets in order to collect. C.R.C.P. 69.  Information can be obtained through standard discovery to include interrogatories, requests for production of documents or deposition. A judgment debtor may be required to appear in person to produce specified documents, and to answer questions under oath. If a debtor does not appear for a deposition, the court may issue a bench warrant. Other witnesses may be required to attend the deposition by subpoena such as employers, family members, and accountants. C.R.C.P. 69(f), C.R.C.P. 45.

Turning Change Into Opportunity in Colorado Springs, Colorado Divorce and Child Custody

A highly knowledgeable and experienced Colorado Springs divorce and child custody lawyer can guide you through Colorado Springs divorce and child custody matters by negotiating, mediating and litigating on your behalf. You can focus on moving to a better future instead of spending your time attempting to navigate complex legal rules and procedures.

Sabra Janko from Janko Family Law has more than 20 years of legal experience and has written “the book” on Colorado divorce and family law – “Colorado Family Law With Forms”, published by LexisNexis, which you can find here. Contact us at 719-344-5523 or complete our online scheduling request for a free 30-minute informational consultation. We also offer paid advice sessions for a more in-depth analysis of your case.