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12-5-119. Attorney's lien - notice of claim filed.

Statute text

All attorneys- and counselors-at-law shall have a lien on any money, property, choses in action, or claims and demands in their hands, on any judgment they may have obtained or assisted in obtaining, in whole or in part, and on any and all claims and demands in suit for any fees or balance of fees due or to become due from any client. In the case of demands in suit and in the case of judgments obtained in whole or in part by any attorney, such attorney may file, with the clerk of the court wherein such cause is pending, notice of his claim as lienor, setting forth specifically the agreement of compensation between such attorney and his client, which notice, duly entered of record, shall be notice to all persons and to all parties, including the judgment creditor, to all persons in the case against whom a demand exists, and to all persons claiming by, through, or under any person having a demand in suit or having obtained a judgment that the attorney whose appearance is thus entered has a first lien on such demand in suit or on such judgment for the amount of his fees. Such notice of lien shall not be presented in any manner to the jury in the case in which the same is filed. Such lien may be enforced by the proper civil action.

History

Source: L. 03: p. 145, 1. R.S. 08: 242. C.L. 6010. CSA: C. 14, 14. CRS 53: 12-1-10. C.R.S. 1963: 12-1-10.

Annotations

 

ANNOTATION

Annotations

 

Analysis

 

I. General Consideration.
II. Attorney's Liens in Colorado.
III. Nature of Lien.
IV. Applicability and Scope of Lien.
V. Enforcement.
A. In General.
B. Notice.
VI. Possessory Lien Extinguished by Settlement.

I. GENERAL CONSIDERATION.

Law reviews. For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For article, "Mechanics' Liens Relative to Oil and Gas Operations -- Part II", see 34 Dicta 373 (1957). For article, "The Treatment of Attorney's Liens in Colorado", see 16 Colo. Law. 623 (1987). For article, "Perfection and Enforcement of Attorney's Liens in Colorado", see 26 Colo. Law. 57 (March 1997). For article, "Ethical Considerations of Attorney's Liens", see 31 Colo. Law. 51 (April 2002). For article, "Recording Charging Liens Against Real Property: When, Not Whether", see 31 Colo. Law. 121 (October 2002). For article, "Improper Recording of an Attorney's Charging Lien", see 32 Colo. Law. 61 (February 2003). For article, "The Duty of Loyalty and Preparations to Compete", see 34 Colo. Law. 67 (November 2005). For article, "Ethics in Family Law and the New Rules of Professional Conduct", see 37 Colo. Law. 47 (October 2008).

Annotator's note. Cases material to 12-5-119 decided prior to its earliest source, L. 03, p. 145, 1, have been included in the annotations to this section.

Validity and extent of attorney's lien in bankruptcy is determined by state law. In re Life Imaging Corp., 31 Bankr. 101 (Bankr. D. Colo. 1983).

Unfounded claim of lien violates professional code. The assertion of an attorney's lien in circumstances where the attorney has no statutory or legal foundation for a lien and, in fact, has an uncertain claim to the fee being claimed through the lien violates the code of professional responsibility. People v. Razatos, 636 P.2d 666 (Colo. 1981), appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982); People v. Smith, 830 P.2d 1003 (Colo. 1992); People v. Mills, 861 P.2d 708 (Colo. 1993) (decided under DR 1-102 (A)(5)).

II. ATTORNEY'S LIENS IN COLORADO.

Law reviews. For article, "Update on Colorado Appellate Decisions in Colorado Workers' Compensation Law", see 30 Colo. Law. 69 (April 2001).

Under Colorado law, the common law attorney's lien is not preserved, and no lien exists apart from statute. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

No attorney's lien exists apart from this statute. In re Rosenberg, 690 P.2d 1293 (Colo. App. 1984).

Attorney's lien was not valid on funds paid directly to law firm by its client for legal services, and therefore fell within the trustee's avoidance power as a preferential transfer. In re Inv. Bankers, Inc., 136 Bankr. 1008 (Bankr. D. Colo. 1989).

There is no common-law attorney's lien in Colorado, and no lien exists apart from this section. Ranes v. Molen, 31 Bankr. 70 (Bankr. D. Colo. 1983).

It was clear that an attorney's lien existed either by state statute or by the common law. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

The federal courts have consistently applied the law of the state in determining whether or not an attorney's lien exists in a given situation. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Homestead exemption statute includes attorney's liens within its ambit and the attorney's lien does not attach to the homestead. If the debtor has any net equity remaining after the sale of the property in question, the creditor's attorney's lien attaches to that net equity and his claim is unsecured for any amount over that sum. In re Dickinson, 185 Bankr. 840 (Bankr. D. Colo. 1995).

Attorney's charging lien is not subject to a homestead exemption that may be claimed upon sale proceeds of an exempt homestead under 38-41-201 and 38-41-207. A proceeding to enforce an attorney's charging lien is not a levy upon property under either a writ of execution or a writ of attachment. In re Benbow, 496 B.R. 605 (Bankr. D. Colo. 2013).

A debtor may not claim any portion of the proceeds from any real property to which an attorney's charging lien attaches as exempt property under the Colorado homestead exemption. In re Benbow, 496 B.R. 605 (Bankr. D. Colo. 2013).

Where an attorney's right to a lien exists by virtue of a statute, such right cannot be extended beyond the fair intendment of such statute. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Colorado has two statutory provisions pertaining to attorney's liens, this section and 12-5-120. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Attorneys have two kinds of liens peculiar to them in their relationship with their client. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

One kind of lien is a lien which an attorney has upon all the papers of his client in his possession, by virtue of which he may retain all of such papers until full payment is made for his services, and it is called a "retaining lien". In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

An attorney also has a lien upon any money, property, choses in action or claims and demands in his hands and on any judgment he may have obtained, and that is denominated a "charging lien". In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

It was not the intention of the general assembly to abolish the well-established distinction between the two classes of liens (i.e. retaining liens and charging liens), and to create a lien upon a judgment and its proceeds to secure the payment of attorney's fees earned in matters not at all connected with the suit in which the judgment is rendered. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

This is true even though this section and 12-5-120 did not separate the two classes of liens as clearly as might be desired. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

The Colorado supreme court has declared that this section and 12-5-120 established two distinct classes of liens, each with its own limitation: a general retaining, or possessory lien, and a special, particular, or charging lien. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

Because "claims and demands in suit" is listed separately from judgments, it is clear that it is not necessary to obtain a judgment in order for an attorney's lien to attach to the settlement proceeds. Cope v. Woznicki, 140 P.3d 239 (Colo. App. 2006).

Language in fee contract which would have granted an attorney's lien against all assets owned by the client covered not only a retaining lien but also a charging lien and, thus, attorney waived the right to assert both types of liens when client had deleted such language from the contract. In re Rosenberg, 690 P.2d 1293 (Colo. App. 1984).

Plain language of this section indicates that a retaining lien may exist for fees "due or to become due from any client." If an attorney who possessed funds of a client had a present interest only in fees already earned, this statutory language would be superfluous. Therefore, bankruptcy attorneys are entitled to prepetition cash retainers for their services following a chapter 11 petition. In re Printcrafters, Inc., 233 Bankr. 113 (Bankr. D. Colo. 1999).

There is no authority in Colorado for an equitable lien apart from this section and 12-5-120. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

This is in accord with the general rule that where a charging lien is created by statute, the right to the lien exists only in cases specifically provided for by such statute. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

A lien on the proceeds of litigation should be declared in favor of an attorney in a cause where equitable considerations require that such lien be recognized. de Bit v. Howard, 107 Colo. 51, 108 P.2d 1053 (1940).

The purpose of the charging lien is to satisfy the attorney's equitable claim for services rendered; therefore, the attorney's lien may attach even though the attorney did not negotiate the settlement. Cope v. Woznicki, 140 P.3d 239 (Colo. App. 2006).

Where attorneys do not have nor have they ever had any of the property in their possession upon which they are claiming an attorney's lien, they are not entitled to a lien on the subject property under this section. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Therefore, where an attorney's representation is merely as attorney in fact, there is no basis upon which he can rightfully claim either a general or special attorney's lien because there were no funds coming into his hands in the course of his professional employment. Moore v. People, 125 Colo. 306, 243 P.2d 425 (1952).

This section is not to be so construed as to prohibit the client from abandoning his claim, or adjusting the controversy with his adversary, acting in good faith, and with no intention of defeating the lien of the attorney. Gooding v. Lyon, 63 Colo. 328, 166 P. 564 (1917).

Applied in Graeber v. McMullin, 56 F.2d 497 (10th Cir. 1932); People ex rel. Eaton v. El Paso County Court, 74 Colo. 123, 219 P. 215 (1923).

III. NATURE OF LIEN.

All attorneys and counselors at law shall have a lien on any money, property, choses in action, or claims and demands in their hands, for any fees or balance of fees due or to become due from any client. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

All attorneys and counselors at law shall have a lien on any judgment they may have obtained or assisted in obtaining in whole or in part, due or to become due from any client. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

This section gives to attorneys a lien on all claims and demands in suit and a lien upon all judgments obtained for any fees or balance of fees due or to become due from any client. Miller v. Houston, 27 Colo. App. 89, 146 P. 786 (1915).

The attorney's lien, whether under this section or at common law, is equitable in its nature. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The lien is not property in the thing which gives a right of action at law. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The lien is a charge upon the thing which is protected in equity. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The lien is enforceable by a suit in equity directly against the property burdened therewith, and the amount of the attorney's compensation, together with the controversies relating to the contract of employment, may be determined in such suit. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

This section provides no method of formally asserting the lien in the first instance. Colo. State Bank v. Davidson, 7 Colo. App. 91, 42 P. 687 (1895).

The lien attaches, upon the recovery of the judgment, by virtue of the statute itself and without action of any kind on the part of the attorney. Colo. State Bank v. Davidson, 7 Colo. App. 91, 42 P. 687 (1895).

When an attorney has obtained a judgment for his client, this section immediately operates to invest him with a lien thereon to the extent of his reasonable fees remaining due and unpaid for his professional services in obtaining the same. Johnson v. McMillan, 13 Colo. 423, 22 P. 769 (1889).

The employment of an attorney operates as an equitable assignment of the client's right to the extent of the agreed compensation, in view of this section. Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519 (1920).

"Charging lien". A "charging lien" attaches to all the fruits due a client after a suit is commenced, and it attaches immediately upon the obtaining of the judgment. The lien, as between the attorney and the client, is automatic and nothing more need be done to cause the lien to be enforceable against the client. If the attorney files a notice with the court, the lien then becomes enforceable against third parties. Ranes v. Molen, 31 Bankr. 70 (Bankr. D. Colo. 1983).

Charging lien not created where money paid to attorney on behalf of debtor in settlement of a lawsuit against a third party remained in attorney's possession when compensable work had been completed. In re Oiltech, Inc., 38 Bankr. 484 (Bankr. D. Nev. 1984).

"Any judgment" defined. "Any judgment", as used in the first sentence, means the fruits of any judgment, including the realty in which a client's interest is preserved. Dolan v. Flett, 41 Colo. App. 40, 582 P.2d 694 (1978).

Attachment and enforceability of lien. The statutory charging lien attaches immediately upon the obtainment of a judgment and, as between attorney and client, nothing more need be done to cause the lien to be enforceable; the lien becomes enforceable against third parties when notice is provided. Dolan v. Flett, 41 Colo. App. 40, 582 P.2d 694 (1978).

Enforceability of attorney's retaining lien against third parties, unlike a charging lien, is not conditioned upon the requirement of notice. In re Oiltech, Inc., 38 Bankr. 484 (Bankr. D. Nev. 1984).

Lien on fund allocated to payment of bankruptcy creditor. An attorney representing a creditor in a bankruptcy proceeding has a lien on the fund allocated to the payment of his client's claim. In re Campbell, 26 Bankr. 145 (Bankr. D. Colo. 1983).

Creditor's statutory attorney's lien obtained pursuant to this section and 12-5-120 was not merged into the judgment lien he subsequently obtained. In re Dickinson, 185 Bankr. 840 (Bankr. D. Colo. 1995).

Where there is a hospital lien and an attorney lien, the effect of the statute is that the attorney is compensated "off the top" absent a contractual arrangement otherwise, before the client receives his share of the proceeds from the tort settlement. Trevino v. HHL Fin. Servs., Inc., 928 P.2d 766 (Colo. App. 1996), aff'd on other grounds, 945 P.2d 1345 (Colo. 1997).

IV. APPLICABILITY AND SCOPE OF LIEN.

A lien cannot be created by the mere fact that an attorney is entitled to be paid for his services. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

An attorney has no legal basis for the assertion of a lien simply to secure a fee obligation where the money being claimed is not in his hands nor involved in a suit. People v. Razatos, 636 P.2d 666 (Colo. 1981), appeal dismissed, 455 U.S. 930, 102 S. Ct. 1415, 71 L. Ed. 2d 639 (1982).

To allow such a lien would be to give the attorney creditor a preferred position which the law does not intend. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Where no suit was ever commenced by an attorney, no claim as lienor could have been filed. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

In order to determine the applicability of this section, the words "in suit" must be carefully considered and understood. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

It is clear from the sentence structure of this section that if there had been an intent to grant a charging lien on all claims turned over to the attorney even before suit is commenced it would necessitate the use of punctuation after the word "claims" or some method to distinguish it from "demands in suit". Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'd sub nom. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

The choice of punctuation lends emphasis to the view that the term "in suit" is intended to modify the word "claims" as well as "demands", and this construction is supported by the prior clause which refers to "claims and demands in their hands". Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

Where no judgment was ever obtained by an attorney, this section is not applicable. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

If a lien is not allowed for services in connection with matters that did not go to suit where a subsequent judgment was recovered for the same client, it would clearly be inconsistent to allow the lien to attach where there was no subsequent judgment. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

A "charging" lien is not allowed to attach prior to the commencement of the suit. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

Where the parties to a writ of error had stipulated to a discontinuance thereof, the court was without jurisdiction to declare a lien upon the properties recovered in favor of the attorneys of the successful party, for securing the fees to which they may be entitled pursuant to contract with the client since the lien, under this section, must be predicated upon a judgment of a court of competent jurisdiction. Lane v. Lyon, 57 Colo. 166, 140 P. 197 (1914).

A claim does not become "in suit" through threat of actions nor preparatory services rendered in contemplation of suit. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

A claim is not "in suit" before a justice until he has issued summons thereon and delivered the same to an officer to be served, or by the appearance and agreement of the parties without summons and the case docketed, authorizing a justice to receive money only when tendered to him on any claim in a suit before him. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

The term "suit" is a very comprehensive one and is said to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

The modes of proceeding may be various, but, if the right is litigated between the parties in the court of justice, the proceeding is a suit. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

This section recognizes no distinction between judgments for money or personal property and decrees of judgments by which the ownership or possession of land is awarded to plaintiff or his interest therein is preserved. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

It gives the attorney a lien upon any judgment obtained by him and belonging to his client. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The attorney's lien attaches under this section, even though the land recovered by the judgment becomes part of a trust estate belonging to wards, and suit may be brought directly against this part of the trust estate without first obtaining individual judgments against the guardians. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The phrase "first lien" creates a lien that takes priority over all other charges or encumbrances on the same property. N. Valley Bank v. McGloin, Davenport, 251 P.3d 1250 (Colo. App. 2010).

Attorney's lien, as a statutory first lien, has priority over a previously perfected security interest. N. Valley Bank v. McGloin, Davenport, 251 P.3d 1250 (Colo. App. 2010).

There is nothing in this section which indicates a purpose to exclude causes of action for personal injuries. Miller v. Houston, 27 Colo. App. 89, 146 P. 786 (1915); Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519 (1920).

An attorney who, upon the retainer of the complaining party and upon an agreement that he shall receive as his compensation a specified share of the recovery, has instituted an action for a tort and has notified the defendant of his claim for a lien is entitled to a lien upon the cause of action for the value of his services. Miller v. Houston, 27 Colo. App. 89, 146 P. 786 (1915).

The attorney's lien reaches all fees due for services rendered, whether the amount of such fees has been agreed upon or is to be settled in suit as upon a quantum meruit. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

An attorney has a retaining lien on retained funds to the extent of and for so long as fees and expenses are owed by the client. In re Printcrafters, Inc., 208 Bankr. 968 (Bankr. D. Colo. 1997).

Unreimbursed costs of litigation advanced by attorney are included in attorney's lien. Kallsen v. Big Horn Harvestore Sys., 761 P.2d 291 (Colo. App. 1988).

The attorney's lien is not limited to compensation for services rendered by the attorney in procuring the judgment upon which he relies. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

The lien cannot be defeated by the setoff of a judgment against his client growing out of independent transactions prior to the attorney's employment. Dankwardt v. Kermode, 68 Colo. 225, 187 P. 519 (1920).

Because the opposing party had notice of the attorney lien prior to its motion to offset, the attorney lien takes priority over the opposing party's right to offset opposing judgments and obtain a single net judgment in its favor. Stiner v. Planned Mgmt. Servs., 923 P.2d 186 (Colo. App. 1995).

Where an attorney represented parties under an agreement by which he was to receive 33 1/3% of all money or the value of any property received in settlement or payment of their claim against third persons and a settlement of $5,000 was arrived at and the third persons agreed to pay the living expenses of his clients until the obligation was fully discharged, it was held that the payment of such living expenses for four years constituted valuable property to which the attorney's lien attached even though no money had been paid on the obligation. de Bit v. Howard, 107 Colo. 51, 108 P.2d 1053 (1940).

Attorney's lien upon award to client cannot exceed amount of award. In re Stewart, 632 P.2d 287 (Colo. App. 1981).

Since no prepetition fees were owed at the time of the bankruptcy filing, under Colorado law there was no retaining lien. In re Printcrafters, Inc., 208 Bankr. 968 (Bankr. D. Colo. 1997).

Misconduct in other cases not to affect assertion of lien. Misconduct in a particular case, if suspension or disbarment is not involved, should not result in the loss of an attorney's ability to assert his lien in other cases where professional misconduct is not involved. People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716 (1978).

Lien not extinguished by bankruptcy. Under 11 U.S.C. 101, an attorney's lien in Colorado is a "statutory" lien, and not a "judicial" lien and, thus, cannot be avoided by a bankruptcy debtor under 11 U.S.C. 522(f). Ranes v. Molen, 31 Bankr. 70 (Bankr. D. Colo. 1983).

An attorney's lien which is valid under state law is not extinguished when the client files bankruptcy. Further, there is no provision in the bankruptcy code for the voiding of a valid statutory attorney's lien. In re Life Imaging Corp., 31 Bankr. 101 (Bankr. D. Colo. 1983).

V. ENFORCEMENT.

A. In General.

The lien under this section is a security, the benefit of which the attorney may or may not avail himself. Boston & Colo. Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885).

Of course, he is not entitled to it unless there remains due him unpaid fees. Boston & Colo. Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885).

An attorney may waive his right to the benefit of his lien under this section. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

If, without notice that he intends to enforce the lien, an innocent third person purchases the realty covered by the judgment or the judgment debtor make a bona fide settlement of the judgment, the attorney cannot hold the realty on the one hand or look to the debtor on the other. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887).

Lien may also be enforced in civil action giving rise to claim. The attorney's charging lien may not only be asserted but may be enforced in the civil action which gave rise to the lien claim or, in the alternative, in an independent action. Both are "proper civil actions" within the meaning of this section. Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977); In re Mann, 697 P.2d 778 (Colo. App. 1984); In re Shapard, 129 P.3d 1007 (Colo. App. 2004).

To restrict the means of enforcement of an attorney's lien solely to independent civil actions would be a waste of judicial time as well as contrary to the legislative intent reflected by the statutory language. The trial judge who hears the proceedings which gave rise to the lien is in a position to determine whether the amount asserted as a lien is proper and can determine the means for the enforcement of the lien. Gee v. Crabtree, 192 Colo. 550, 560 P.2d 835 (1977).

The trial court may not adjudicate the rights of persons not actually or constructively before it; therefore it erred in divorce action by giving priority to parents' interest in parties' residence over the husband's attorney's charging lien in the proceeds from the sale of the residence. In re Weydert, 703 P.2d 1336 (Colo. App. 1985).

Filing a notice of an attorney's lien merely places others on notice that the attorney claims an interest in the funds subject to the lien and does not constitute the commencement of a "proper civil action" for the purpose of enforcing the lien. In re Mitchell, 55 P.3d 183 (Colo. App. 2002).

An attorney must enforce a charging lien within the limitation period applicable to enforcement of the underlying debt. Gold v. Duncan Ostrander & Dingess, P.C., 143 P.3d 1192 (Colo. App. 2006).

In a dissolution-of-marriage proceeding, the amount and allocation of fees between parties may not be challenged independently by lien claimant. In re Shapard, 129 P.3d 1007 (Colo. App. 2004).

There is no right to a jury trial in action to establish an attorney's lien since it is equitable in nature, and counterclaim for breach of contract does not change nature of the action. In re Rosenberg, 690 P.2d 1293 (Colo. App. 1984).

Court erred in enjoining enforcement of attorney's lien where it failed to give notice to all the parties involved and where it failed to determine the validity of the lien and whether there existed any property which could be reached to enforce it. Seitz v. Seitz, 33 Colo. App. 180, 516 P.2d 654 (1973).

Attorney lien statute does not create implied exception to protections offered to workers' compensation benefits, because the workers' compensation statute unequivocally exempts workers' compensation benefits from any remedy ordinarily available to satisfy a debt, with only one explicit exception. James E. Freemyer, P.C. v. Indus. Claim Appeals Office, 32 P.3d 564 (Colo. App. 2000).

Attorney's charging lien not enforceable against a court-ordered spousal maintenance obligation or payment. It was not error for trial court to deny law firm's motion to enforce the lien against the husband's obligations to his former spouse. In re Dixon, 2015 COA 99, __ P.3d __.

B. Notice.

This section goes no further than to give the attorney the right to file a notice of lien, which filing only perfects his right, if any, in the subject matter of the action. In re Crabtree, 37 Colo. App. 149, 546 P.2d 505 (1975), rev'd on other grounds, 192 Colo. 550, 560 P.2d 835 (1977).

If the attorney expects satisfaction of his claim out of the judgment, he must so notify the judgment debtor, and the notice must be followed, within a reasonable time, by suit. Colo. State Bank v. Davidson, 7 Colo. App. 91, 42 P. 687 (1895).

The notice must be followed within a reasonable time by suit. Colo. State Bank v. Davidson, 7 Colo. App. 91, 42 P. 687 (1895).

The judgment debtor must be notified of the attorney's intention to take advantage of the statute. Boston & Colo. Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885).

In order to render the lien valid as against the judgment debtor, he must have notice that their fees were unpaid in whole or in part, and that they relied upon the judgment as security therefor. Boston & Colo. Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885); Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887); Johnson v. McMillan, 13 Colo. 423, 22 P. 769 (1889).

Since no particular form of notice is provided in this section, the common law rule of notice prevails. Boston & Colo. Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885); Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887); Johnson v. McMillan, 13 Colo. 423, 22 P. 769 (1889).

In the case of demands in suit and in the case of judgments obtained in whole or in part by any attorney, an attorney may file with the clerk of the court wherein such cause is pending, notice of his claim as lienor. In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo.), aff'd sub nom. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir. 1958).

The statutory notice to the judgment debtor of the intention of such attorney to claim a lien on the judgment is unnecessary where the debtor has actual knowledge of such claim. Aleman v. Annable, 110 Colo. 61, 129 P.2d 987 (1942).

The notice that this section provides "may" be filed with the clerk of the court is not a prerequisite to the validity of the lien. Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933).

As between attorney and client, the lien is valid without notice. Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933).

The provision in this section concerning notice is intended to give constructive notice, so as to preserve the attorney's lien in the event that the judgment debtor should settle the judgment without having actual notice of the lien claim or some third person, without having such actual notice, should acquire an interest in the judgment or in its proceeds. Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933).

In the former statute there was no provision permitting an attorney to file a notice of his lien claim and making it constructive notice thereof. Fillmore v. Wells, 10 Colo. 228, 15 P. 343 (1887); Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933).

Perfection of an attorney's lien as to third parties is not retroactive so as to have priority over bona fide purchaser for value. In re Mailin Oil Co., 67 Bankr. 284 (Bankr. D. Colo. 1986).

Priority of liens. Where notice of the attorney's lien was properly filed before the entry of judgment and before the state's assertion of a lien, the attorney's lien had priority. Matter of Estate of Benney, 771 P.2d 7 (Colo. App. 1988).

If a judgment debtor, without notice that the attorney intends to enforce his lien, should make a bona fide settlement of the judgment or if an innocent third person, without such notice, should purchase the fruits of the judgment or should acquire an interest in the judgment, the attorney's lien would be lost. Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933).

Lien can be enforced against settlement funds once the settlement agreement has been carried out, but only to the extent that the client has an interest in the funds. Any allegations regarding a breach of the settlement agreement must be disposed of before the court can enter an order enforcing the attorney's lien. MCI Constructors v. District Court, 799 P.2d 40 (Colo. 1990).

VI. POSSESSORY LIEN EXTINGUISHED BY SETTLEMENT.

The general, retaining, or possessory lien attaches to all papers, books, documents, securities, and money coming into an attorney's possession in the course of his professional employment. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

The attorney has a right to retain them in his possession until the general balance due him for legal services is paid, whether such services grew out of the special matters then in his hands or other legal matters. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

It does not create an equitable charge which follows the proceeds received in settlement of a claim, such as where a "claim" of the bankrupt against the leaders was extinguished by the agreed settlement. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

Where a settlement extinguished the claim by necessity, it also extinguished any "possessory" lien which attached to the claim itself. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

Moreover, even if it were held that a possessory lien attaches to any claim turned over to an attorney when that claim is placed in his hands, such a lien does not continue after the claim is extinguished so as to be transferred as an equitable charge against property received in settlement. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.) aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).

To do so would violate the distinction between the "possessory" and "charge" liens and go contrary to the caution expressed that the two must not be confused. Donaldson v. Gaudio, 260 F.2d 333 (10th Cir.), aff'g In re Forrest A. Heath Co., 159 F. Supp. 632 (D. Colo. 1958).