Norton v. Ruebel

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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