People ex rel. MacFarlane v. Harthun

• Decision Date: 21 February 1978
• Docket Number: No. 27282,27282
• Parties: PEOPLE of the State of Colorado ex rel. J. D. MacFARLANE, Attorney General, Complainant, v. Carl L. HARTHUN, Respondent.
• Court: Colorado Supreme Court

Page 716

581 P.2d 716

195 Colo. 38

PEOPLE of the State of Colorado ex rel. J. D. MacFARLANE, Attorney General, Complainant, v. Carl L. HARTHUN, Respondent.

No. 27282.

Supreme Court of Colorado,En Banc.

Feb. 21, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edwin L. Felter, Jr., Asst. Atty. Gen., Denver, for complainant.

Levine, Pitler & Westerfeld, P.C., Robert L. Pitler, Denver, for respondent.

ERICKSON, Justice.

The respondent, Carl L. Harthun, was suspended from the practice of law while proceedings were pending against him involving a long list of violations of the Code of Professional Responsibility, interlaced with allegations of criminal conduct. Pursuant to C.R.C.P. 259(E), the allegations regarding criminal conduct were deferred pending determination of the issue of guilt in the criminal court. The respondent subsequently pled guilty and was sentenced for crimes which were tied to his defalcation and theft of a client's funds. Thereafter, a hearing was set as to the criminal charges, pursuant to Rule 258. The respondent is presently working in an ice cream parlor, having been granted the privilege to participate in a work-release program.

The conduct of the respondent has been exacerbated by the respondent's conduct relating to his former clients. A master was appointed by the court, heard testimony, and held an extended hearing regarding the respondent's refusal to return files to clients on the basis of his assertion of an attorney's lien.

On December 2, 1977, the special master submitted findings and recommendations to the court. The respondent did not comply with the spirit of the order and required an additional order from the master. Following an additional hearing, the master recommended that this court enter an order relating to certain files which were being withheld by the respondent. The following order was entered on January 13, 1978:

"Respondent is hereby ordered and directed to turn over, within a period of fifteen (15) days following the date of this Order, all files and papers, except his own work product, as has been requested, to former clients Thelma N. Marple, Margaret Davis, Victoria Wood, Georgia Cory, and James Culpepper; and, likewise to turn over, within a fifteen (15) day period, after written request is made to him by any other former client, that client's files and papers, except Respondent's own product. If Respondent is unable, for any reason, to locate or to deliver any file or papers, as requested, he shall, within ten (10) days after the fifteen (15) day period ends, report such fact to this Court in writing, setting forth his reasons therefor and why he should not be held in contempt of this Court for his failure to so act. The release of such files shall not, however, prejudice Respondent's rights, if any, to assert any alleged claims he may have for unpaid fees or costs."

Contemporaneously with the entry of the order, we indicated that an opinion would be rendered as to the issues in this case.

The delays imposed by the respondent upon his clients' efforts to secure redress in the courts are deplorable and cannot be tolerated. His conduct serves as an egregious model for those who elect to disregard the Code of Professional Responsibility and the fiduciary duty which exists between attorney and client. In connection with the entry of the order by this court, it is necessary that we render an opinion to prevent further abuse of an attorney's lien procedure, such as occurred in this case.

The General Assembly has enacted two statutes establishing attorneys' liens. Sections 12-5-119, 120, C.R.S.1973. The legislature thereby created two types of liens commonly referred to as "charging liens" and "retaining liens." Collins v. Thuringer, 92 Colo. 433, 21 P.2d 709 (1933). The respondent asserts a "retaining lien" in the files of his clients under section 12-5-120, C.R.S.1973:

"12-5-120. Other property to which lien attaches. An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment and upon money due to his 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."

We have previously held that the statutory "charging lien," section 12-5-119, C.R.S.1973, attaches immediately upon the obtainment of a judgment. The "charging lien" statute automatically gives the attorney a lien on the judgment to the extent of his reasonable fees, remaining due and unpaid, for professional services rendered in obtaining the judgment. Once a judgment is secured, as between attorney and client, nothing more need be done to cause the lien to be enforceable. However, before the lien can be enforced against third parties, notice must be given. Collins v. Thuringer, supra; Johnson v. McMillan, 13 Colo. 423, 22 P. 769 (1889); Boston and Colorado Smelting Co. v. Pless, 9 Colo. 112, 10 P. 652 (1885).

The principles established in connection with the "charging lien" apply equally well to "retaining liens." The statute provides that an " attorney has a lien for a general balance of compensation upon any papers of his client." This language can only...