COLORADO COURT OF APPEALS                                       2017COA85


Court of Appeals No. 16CA0295
La Plata County District Court No. 13CV14
Honorable Jeffrey R. Wilson, Judge


Scott R. Larson, P.C., a Colorado professional corporation,

Appellant and Cross-Appellee,

v.

Michael K. Grinnan,

Appellee and Cross-Appellant.


             JUDGMENT AFFIRMED IN PART, ORDER VACATED,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division III
                          Opinion by JUDGE WEBB
                        Booras and Freyre, JJ., concur

                          Announced June 15, 2017


Holley, Albertson & Polk, P.C., Dennis B. Polk, Denver, Colorado; Recht
Kornfeld, P.C., Heather R. Hanneman, Denver, Colorado, for Appellant and
Cross-Appellee

Burg, Simpson, Eldredge, Hersh & Jardine, P.C., David P. Hersh, Diane
Vaksdal Smith, Nelson Boyle, Jacob M. Burg, Englewood, Colorado, for
Appellee and Cross-Appellant
¶1    This attorney fees dispute pits Colo. RPC 1.5(e) — which

 prohibits referral fees between lawyers in different law firms —

 against Colo. RPC 1.5(d) — which permits division of attorney fees

 between lawyers who are not in the same firm, other than in

 proportion to the work that each performed, only if the lawyers were

 jointly responsible for the engagement. Exactly what “joint

 responsibility” means is a novel question in Colorado.

¶2    Scott R. Larson, P.C., performed most of the work after the

 underlying case was referred to the firm. Larson asserts that

 because the trial court misinterpreted the “joint responsibility”

 limitation in Colo. RPC 1.5(d)(1), its award of referral fees to

 appellee and cross-appellant, Michael K. Grinnan, improperly

 apportioned the contingent fee that arose from settlement of the

 underlying case. Thus, Larson continues, fees the court awarded to

 Grinnan for originating the case must be reapportioned to Larson,

 leaving Grinnan with only the fees that the court awarded him for

 “actual services performed.”

¶3    Grinnan, who referred the case to Larson but then acted

 mostly as a conduit with the clients, responds that because the

 court made a factual finding, with record support, that he and


                                     1
 Larson had joint responsibility for the case, the fees awarded to him

 did not have to be in proportion to the services that he had

 performed. Thus, in Grinnan’s view, the fee allocation properly

 compensated him for having originated the case. Still, he further

 asserts that the court erred in disregarding unrebutted expert

 testimony as to the percentage of fees that would reasonably and

 customarily be awarded to a lawyer in his position. He also

 challenges the court’s award of prejudgment interest to Larson and

 its refusal to award costs to either party.

¶4    We vacate the attorney fee award, reject the contentions raised

 in Grinnan’s cross-appeal, and remand the case for additional

 findings on joint responsibility and possible reconsideration of

 costs.

                             I. Background

                                A. Facts

¶5    A propane explosion destroyed Tim Kelley’s home, seriously

 injuring Mr. Kelley, his wife, and their daughter. Grinnan, a

 life-long friend of Mr. Kelley, visited him in the hospital. Mr. Kelley

 asked Grinnan to represent the family.




                                    2
¶6     Grinnan, a general practitioner with limited experience in

 personal injury cases, sought and obtained Mr. Kelley’s consent to

 involve Larson. Larson entered into a contingent fee agreement

 with the Kelley family. As relevant to the fee dispute between

 Larson and Grinnan, this agreement:

      identified Grinnan as “associated counsel”;

      stated that Grinnan would be paid a percentage of Larson’s

       fee, “not to exceed 100%”; and

      provided that Larson was responsible for paying case expenses

       as they were incurred.

 Grinnan was not a signatory to this agreement.

¶7     On the Kelleys’ behalf, Larson brought claims against Creative

 Plumbing and Heating, AmeriGas Propane, Inc., and Mesa Propane.

 Relatively early in the case, and just before Creative Plumbing filed

 for bankruptcy, its insurer made a policy limits settlement. From

 Larson’s $333,333 fee on this settlement, he sent Grinnan a check

 for $50,000.

¶8     Litigation continued against AmeriGas and Mesa Propane. On

 the morning of the first day of trial, approximately three years after




                                    3
  the claims had been filed, AmeriGas settled. At the end of the first

  trial day, Mesa Propane also settled.

¶9       Based on these settlements, the contingent fee agreement

  entitled Larson to a total fee of $3,216,666.67. Larson had incurred

  about $300,000 in costs.

                            B. Procedural Posture

¶ 10     Larson and Grinnan were unable to agree on how to divide the

  contingent fee. Shortly before Grinnan filed an attorney’s lien, he

  entered his appearance. The trial court granted Grinnan’s request

  that all attorney fees paid to Larson be deposited in a restricted

  interest bearing account. The court held an evidentiary hearing. It

  heard testimony from Scott Larson, Grinnan, and several experts.

                           C. Trial Court’s Rulings

¶ 11     The trial court entered a detailed, written order allocating the

  attorney fees.

¶ 12     The court began by finding that “the two attorneys did not

  reach an agreement as to how the fees would be divided.”1 Then it

  turned to Colo. RPC 1.5(d)(1). This rule permits “a division of a fee


  1   Neither party challenges this finding.


                                       4
  between lawyers who are not in the same firm . . . only if: (1) the

  division is in proportion to the services performed by each lawyer or

  each lawyer assumes joint responsibility for the representation.”

¶ 13     The court declined to divide the fees in proportion to services.

  Instead, it found that Grinnan had “assumed joint responsibility for

  the representation of the Kelleys” in two ways. First, by

  recommending Larson and being named as associated counsel,

  Grinnan “subject[ed] himself to potential malpractice liability.”

  Second, as to the fee generated by the Creative Plumbing

  settlement, “by accepting a lesser amount than what [Grinnan]

  thought he was entitled when Creative settled, [Grinnan] was

  helping to pay the costs of the litigation.”

¶ 14     The court began the fee allocation by finding the one-third

  contingency to be reasonable and that under Colo. RPC 1.5(d),

  Grinnan “is entitled to have the Court determine the amount of

  attorney’s fees he is entitled to receive.” Then it found as follows:

        Larson benefitted from Grinnan’s “referring the case to him,”

         as well as from Grinnan’s “initially acting as a go-between for

         the Kelleys and Mr. Larson.”




                                      5
        “[T]he amount of work performed by Mr. Grinnan was

         significantly dwarfed by the amount of work performed by Mr.

         Larson” and other members of his firm.

        “The majority of the value Mr. Grinnan provided was . . . the

         origination of the case and . . . Mr. Grinnan’s close

         relationship with Mr. Kelley that allowed Mr. Grinnan to

         explain matters to the Kelleys . . . in a way that they were

         reassured that the case was proceeding appropriately.”

        “Mr. Grinnan provided no other services to Mr. Larson that

         aided him in the prosecution of the case.”

¶ 15     Next, the court acknowledged expert testimony that “common

  practice in the legal community in the State of Colorado” would give

  “the attorney who originated the client . . . one-quarter to one-third

  of the fee.” Still, the court drew on “its experience both in private

  practice and on the bench.” It noted “the different amounts of work

  required to settle as to” Creative Plumbing and “the remaining two

  defendants.”

¶ 16     Then it divided the fees as follows:

        Of the $333,333.34 fee generated by the Creative Plumbing

         settlement, Grinnan was entitled to 20%, “10% for bringing

                                      6
         the case to Mr. Larson and 10% for the actual services he

         provided.”

        Because “Mr. Grinnan’s involvement in acting as a go-between

         became increasingly less necessary and eventually

         unnecessary,” of the $2,883,333.33 fee generated by the

         AmeriGas and Mesa Propane settlements, Grinnan would

         receive 12.5%, “10% for originating the case and 2.5% for the

         actual services” provided.

¶ 17     In a later written order on interest and costs, the court

  awarded Grinnan prejudgment interest “at the rate of 8% percent

  from the date the settlement checks were issued” until final

  judgment entered on the fees allocated to him. However, the court

  noted that because of the “very limited amount of services” provided

  by Grinnan, his “claims for attorney’s fees are far in excess of what

  any reasonable attorney would demand.” Then it concluded that

  Grinnan’s demand “that 100% of the fees be placed in a restricted

  account was, as a practical matter, a wrongful withholding,” which

  entitled Larson to interest under section 5-12-102, C.R.S. 2016, on

  the total amount of fees, less what was awarded to Grinnan.




                                      7
¶ 18   Finally, the court declined to award costs, finding that neither

  lawyer “was the prevailing party.”

                                  APPEAL

           II. Remand Is Required to Resolve Joint Responsibility

¶ 19   Whether Grinnan assumed joint responsibility for the case is

  the heart and soul of this dispute. If he did not, then only fees

  proportional to the services that he performed could be awarded to

  him. Larson does not dispute that portion of the trial court’s fee

  award.

¶ 20   Larson asserts that Grinnan never assumed joint

  responsibility because he did not assume responsibility for the

  representation as a whole. Ultimately, we conclude, as did the trial

  court, that Grinnan satisfied one of two components of joint

  responsibility — assuming financial responsibility. But remand is

  necessary for the trial court to determine whether he satisfied the

  other component — ethical responsibility, on which it made no

  findings.

               A. Standard of Review and Legal Framework

¶ 21   We review de novo the trial court’s interpretation of a rule of

  professional conduct, People v. Hoskins, 2014 CO 70, ¶ 17 (citing


                                       8
  People v. Nozolino, 2013 CO 19, ¶ 9), but will not disturb the court’s

  factual findings unless they have no support in the record, Perfect

  Place v. Semler, 2016 COA 152M, ¶ 19. On this much, the parties

  agree.

¶ 22   The Rules of Professional Conduct “establish standards of

  conduct by lawyers,” Colo. RPC Preamble ¶ 20, for the purpose of

  protecting clients, Mercantile Adjustment Bureau, L.L.C. v. Flood,

  2012 CO 38, ¶ 15.

¶ 23   When interpreting the Rules, the text of the Rule is

  authoritative. Colo. RPC Preamble ¶ 20. Our supreme court has

  cautioned: “Comments to the Rules of Professional Conduct do not

  add obligations to the Rules but merely provide guidance for

  practicing in compliance with the Rules.” In the Matter of Gilbert,

  2015 CO 22, ¶ 33.

¶ 24   Even so, our supreme court has sometimes relied extensively

  on comments. See, e.g., Mercantile Adjustment Bureau, L.L.C., ¶ 39

  (“However, as their accompanying comments make perfectly clear,

  the ethical rules have developed to nevertheless limit the ability of

  lawyers to subsidize law suits or administrative proceedings

  brought on behalf of their clients, on the basis of two countervailing


                                     9
  considerations.”). And in People v. Lincoln, 161 P.3d 1274, 1280

  (Colo. 2007), the court recognized that a comment broadened a

  rule:

               Rule 1.6(a) states that “[a] lawyer shall not
               reveal information relating to representation of
               a client unless the client consents after
               consultation.” However, the comment to this
               rule states that an attorney may not disclose
               confidential information, unless authorized or
               required by other Rules of Professional
               Conduct or other law.

¶ 25      Colo. RPC 1.5 regulates fees lawyers may charge for their

  work. As relevant here, Rule 1.5(e) prohibits referral fees. Even so,

  Rule 1.5(d) provides that lawyers may divide a fee under certain

  circumstances:

               (d) Other than in connection with the sale of a
               law practice pursuant to Rule 1.17, a division
               of a fee between lawyers who are not in the
               same firm may be made only if:

                    (1) the division is in proportion to the
                    services performed by each lawyer or
                    each lawyer assumes joint responsibility
                    for the representation;

                    (2) the client agrees to the arrangement,
                    including the basis upon which the
                    division of fees shall be made, and the
                    client’s agreement is confirmed in
                    writing; and

                    (3) the total fee is reasonable.


                                      10
  Comment 7 contextualizes paragraph (d):

            A division of fee is a single billing to a client
            covering the fee of two or more lawyers who are
            not in the same firm. A division of fee
            facilitates association of more than one lawyer
            in a matter in which neither alone could serve
            the client as well, and most often is used when
            the fee is contingent and the division is
            between a referring lawyer and a trial
            specialist. Paragraph (d) permits the lawyers
            to divide a fee either on the basis of the
            proportion of services they render or if each
            lawyer assumes responsibility for the
            representation as a whole. In addition, the
            client must agree to the arrangement,
            including the share that each lawyer is to
            receive, and the agreement must be confirmed
            in writing. Contingent fee agreements must be
            in a writing signed by the client and must
            otherwise comply with paragraph (c) of this
            Rule. Joint responsibility for the
            representation entails financial and ethical
            responsibility for the representation as if the
            lawyers were associated in a partnership. A
            lawyer should refer a matter only to a lawyer
            who the referring lawyer reasonably believes is
            competent to handle the matter. See Rule 1.1.

                             B. Discussion

                     1. Representation as a Whole

¶ 26   Larson starts by relying on the phrase in Comment 7 providing

  that a fee may be divided other than in proportion to the work

  performed only when each lawyer has accepted joint responsibility



                                   11
  for the representation “as a whole.” From this phrase, he asserts

  that three components of joint responsibility flow — adequacy of

  representation, financial responsibility, and ethical responsibility.

¶ 27   Larson’s argument for reading adequacy of representation into

  the phrase “representation as a whole” falls short for three reasons.

  First, the phrase does not appear in the text of the rule. See Colo.

  RPC Preamble ¶ 20 (text of the rule is authoritative). Second, the

  phrase “adequacy of representation” does not appear in Comment

  7. Third, the Comment defines “joint responsibility” — not

  “representation as a whole” — as ethical and financial

  responsibility. See Colo. RPC 1.5 cmt. 7.

¶ 28   As well, focusing on representation “as a whole” obscures a

  more instructive inquiry. Specifically, because the text of the rule

  includes “joint responsibility” and Comment 7 provides a definition,

  our joint responsibility analysis focuses on the phrase itself.

¶ 29   Still, Larson emphasizes adequacy of representation and

  adequate client communication. Both phrases appear in ABA

  Commission on Ethics and Professional Responsibility, Informal

  Opinion 85-1514 (1985) (ABA Opinion 85-1514), which discusses

  the Model Code predecessor provision to Model Rule 1.5(d). See


                                    12
  Model Rules of Prof’l Conduct r. 1.5 reporter’s explanation of

  changes (Am. Bar Ass’n 2002), https://perma.cc/EY87-62FK (“The

  Commission proposes revising the explanation of “joint

  responsibility” to entail legal responsibility, including financial and

  ethical responsibility, as if the lawyers were associated in a

  partnership. This is the interpretation that has been given to the

  term according to ABA Informal Opinion 85-1514, as well a number

  of state ethics opinions.”).

¶ 30   We take up adequacy of representation in the following

  financial responsibility and ethical responsibility sections. We need

  not address client communication because the trial court found

  that Grinnan “explain[ed] matters to the Kelleys . . . in a way that

  they were reassured that the case was proceeding appropriately,”

  and Larson does not challenge those findings.

                          2. Joint Responsibility

¶ 31   Recall, Comment 7 treats joint responsibility as involving two

  components: financial responsibility and ethical responsibility.

  First addressing financial responsibility and treating the trial

  court’s conclusion as a mixed question of law and fact, we conclude

  that Grinnan assumed financial responsibility. Second, because


                                     13
  the trial court did not make any findings on ethical responsibility,

  which is also a mixed question, we further conclude that remand is

  required. Then, because little authority — and none in Colorado —

  informs the analysis of ethical responsibility, we identify three

  criteria that the court should apply in making further findings on

  remand.

                   a. Mixed Question of Law and Fact

¶ 32   The parties dispute how the standard of review should be

  applied. According to Larson, everything the trial court decided is

  subject to de novo review because the court interpreted Colo. RPC

  1.5(d)(1). See Nozolino, ¶ 9. Grinnan responds that whether he

  assumed joint responsibility for the representation raises a mixed

  question of law and fact. He is correct.

¶ 33   “A mixed question of law and fact involves the application of a

  legal standard to a particular set of evidentiary facts in resolving a

  legal issue.” Atl. Richfield Co. v. Whiting Oil & Gas Corp., 2014 CO

  16, ¶ 22 (quoting Mt. Emmons Mineral Co. v. Town of Crested Butte,

  690 P.2d 231, 239 (Colo. 1984)). This standard applies here

  because we must first consider what joint responsibility means

  under Colo. RPC 1.5, a legal question. Next, we must consider


                                    14
  whether Grinnan complied with the joint responsibility standard, a

  factual question. Therefore, we will afford “traditional deference to

  the trial court’s extensive findings regarding [the parties’] actions

  . . . while interpreting [Rule 1.5] independent of the trial court.” See

  Sheridan Redevelopment Agency v. Knightsbridge Land Co., L.L.C.,

  166 P.3d 259, 262 (Colo. App. 2007).

              b. Grinnan Assumed Financial Responsibility

¶ 34   Whether Grinnan assumed financial responsibility is informed

  by court decisions and ethics opinions in other jurisdictions. With

  minor variations, financial responsibility has been equated with the

  referring lawyer’s being subject to joint and several or vicarious

  liability for the trial specialist’s legal malpractice. See generally

  Jennifer F. Zeiglar, Note, Firm Arrangements, Including Fee-Sharing

  Agreements, with the Imposition Malpractice Liability, 24 J. Legal

  Prof. 537, 545 (2000) (“Although liability pursuant to fee-sharing

  agreements is relatively new, it is based on the traditional principles

  of vicarious liability and respondeat superior, both of which are

  firmly embedded in tort law.”). We adopt this interpretation.

¶ 35   Reading Colo. RPC 1.5 and Comment 7 together provides

  context. Under Rule 1.5(d)(1), fees may be divided between lawyers


                                     15
  in different firms only if the division is “in proportion to the services

  performed by each lawyer or each lawyer assumes joint

  responsibility for the representation.” Comment 7 defines joint

  responsibility as undertaking both ethical and financial

  responsibility for the case as if that lawyer and the lawyer to whom

  he refers the case “were associated in a partnership.” Because

  neither the Rule nor the Comment defines financial responsibility,

  we turn to other jurisdictions that have done so.

¶ 36   New York narrows joint responsibility to only financial

  responsibility:

             This Court’s view, therefore, is that joint
             responsibility is synonymous with joint and
             several liability. When lawyers assume “joint
             responsibility” in order to share a fee under
             NY-DR § 2-107 without regard to work
             performed, they are ethically obligated to
             accept vicarious liability for any act of
             malpractice that occurs during the course of
             the representation.

  Aiello v. Adar, 750 N.Y.S.2d 457, 465 (N.Y. Sup. Ct. 2002). The

  court explained that “[a]lthough the harsh financial consequences

  . . . create a strong incentive for the referring lawyer to keep

  himself/herself abreast of the manner in which the matter is being




                                     16
  handled by the receiving lawyer, the rule does not create an ethical

  obligation to supervise the receiving attorney’s work.” Id.

¶ 37   Illinois takes a similar approach. See Ill. Jud. Ethics Comm.,

  Op. 1994-16 (1994), https://perma.cc/3QD9-AF9L (“The

  Committee believes that such legal responsibility consists solely of

  potential financial responsibility for any malpractice action against

  the recipient of the referral.”). So do Arizona and Florida. See Ariz.

  Comm. on Rules of Prof’l Conduct, State Bar Ethics Op. 04-02

  (2004), https://perma.cc/VW8M-Z25B (“[T]he requisite ‘joint

  responsibility’ exists if the referring attorney assumes financial

  responsibility for any malpractice that occurs during the course of

  the representation.”); Noris v. Silver, 701 So. 2d 1238, 1240 (Fla.

  Dist. Ct. App. 1997) (“Therefore, if Silver and Falk agreed to divide

  the attorney’s fee [by assuming joint responsibility], Silver would be

  liable for the malpractice committed by Falk.”). In Wisconsin,

  financial responsibility as if the lawyers were associated in a

  partnership means the referring lawyer’s assumption of vicarious

  liability for the representation, as well as responsibility for costs.

  Wis. State Bar Comm. on Prof’l Ethics, Ethics Op. E-00-01 (2000),




                                     17
  https://perma.cc/C4XB-EAQ2 (hereinafter Wis. Ethics Op. E-00-

  01).

¶ 38     That “financial . . . responsibility . . . as if . . . associated in a

  partnership,” Colo. RPC 1.5 cmt. 7, equates to the referring lawyer’s

  vicarious liability for malpractice is illustrated in Duggins v.

  Guardianship of Washington Through Huntley, 632 So. 2d 420

  (Miss. 1993). There, the court concluded that when one lawyer is

  associated with another, although they are not in the same law

  firm, principles of partnership and joint venture give rise to

  vicarious liability. Id. at 428-29. It explained that such an

  association may result in a “relationship [that] can be described as

  a joint venture, at the least.” Id. at 427; accord Phillips v. Joyce,

  523 N.E.2d 933, 941 (Ill. App. Ct. 1988) (stating it was reasonable

  to conclude that division of contingent fee between lawyer handling

  pretrial work and lawyer handling trial work was joint venture).

¶ 39     These cases are well reasoned. Also, their approach finds

  some support in Colorado. See Bebo Constr. Co. v. Mattox &

  O’Brien, P.C., 998 P.2d 475, 477 (Colo. App. 2000) (concluding that

  where a law firm and a construction consulting firm entered into a




                                        18
  joint venture agreement, the consulting firm was liable for damages

  flowing from the law firm’s legal malpractice).

¶ 40   In addition, commentators and ethics opinions suggest that

  sound policy supports allowing a fee division disproportionate to the

  work performed in exchange for greater financial protection of the

  client through joint and several or vicarious liability. See, e.g., N.Y.

  Cty. Lawyers’ Ass’n, Comm. on Prof’l Ethics, Ethics Op. 715, at 5

  (1996), https://perma.cc/Q8UM-JQNF (“[J]oint responsibility . . .

  [i]s intended to add to the protection otherwise available to the

  client . . . . Since a lawyer is liable for his or her own failure to

  exercise due care, the writing given to the client must create some

  additional vicarious liability on the part of the referring lawyer in

  order to satisfy [the New York Code].”); Sheryl Zeligson, The Referral

  Fee and the ABA Rules of Model Conduct: Should States Adopt Model

  Rule 1.5(e)?, 15 Fordham Urb. L.J. 801, 818 (1986) (“The increased

  liability associated with the Model Rule, however, will provide the

  incentive for attorneys to refer their clients to the person who will

  most competently handle the case.”); cf. Wis. Ethics Op. E-00-01 (“It

  must be remembered that in such a [joint responsibility] referral

  arrangement, the referring lawyer still maintains an attorney-client


                                      19
  relationship with the client. It is the ongoing protection of the

  client’s interests by the referring lawyer that justifies the referring

  lawyer receiving a fee that is beyond the proportion of the services

  actually provided by that lawyer.”).

¶ 41   The statement in ABA Opinion 85-1514, on which Larson

  relies — that joint responsibility includes a “responsibility to assure

  adequacy of representation . . . that a partner would have for a

  matter handled by another partner” — does not persuade us to

  include supervision by the referring lawyer in the financial

  responsibility calculus. Note, the opinion refers to partners in the

  same firm. And the vicarious liability of one partner for the

  negligence of another partner in actions concerning the

  partnership’s affairs does not arise from lack of supervision.

  Instead, “each participant in a joint venture is vicariously liable for

  the negligence of the other participants.” Am. Family Mut. Ins. Co.

  v. AN/CF Acquisition Corp., 2015 COA 129, ¶ 9.

¶ 42   Therefore, we adopt the joint and several or vicarious liability

  test for financial responsibility. Next, we turn to the law of

  partnership and joint ventures to determine whether Grinnan

  assumed financial responsibility.


                                      20
¶ 43   To begin, the trial court held:

             Had a malpractice claim against Mr. Larson
             been initiated, Mr. Grinnan, despite his
             friendship with Mr. Kelley, would likely have
             been named as a defendant by the Kelley’s
             malpractice lawyer. By subjecting himself to
             potential malpractice liability, Mr. Grinnan
             was accepting responsibility for representation
             in the case.

¶ 44   Larson does not dispute this holding. Rather, he asserts that

  because a referring lawyer would always be liable for negligence in

  choosing the lawyer to whom the case was referred, it sets the bar

  too low. Ultimately, our conclusion aligns with the trial court’s.

  Yet, the court’s somewhat oblique language, “would likely have been

  named as a defendant,” coupled with Larson’s low bar assertion,

  demand further analysis.

¶ 45   Because a joint venture is a partnership formed for a limited

  purpose, the substantive law of partnership must be applied in

  determining whether a joint venture exists. Batterman v. Wells

  Fargo Ag Credit Corp., 802 P.2d 1112, 1117 (Colo. App. 1990). “A

  joint venture exists when there is: (1) a joint interest in property; (2)

  an express or implied agreement to share in profits or losses of the

  venture; and (3) actions and conduct showing joint cooperation in



                                     21
  the venture.” Compass Ins. Co. v. City of Littleton, 984 P.2d 606,

  619 (Colo. 1999) (quoting City of Englewood v. Commercial Union

  Assur. Cos., 940 P.2d 948, 957 (Colo. App. 1996)).

¶ 46   Since the trial court did not follow this path, normally the next

  step would be a remand for further findings. See, e.g., Dempsey v.

  Denver Police Dep’t, 2015 COA 67, ¶ 19 (“We agree that the record

  does not clearly demonstrate that the trial court made a finding as

  to whether Officer Jossi was exceeding the lawful speed limit at the

  relevant time and, thus, we remand for further findings.”). But not

  always. An exception exists because if the “relevant facts are

  undisputed and complete, remand to the district court would only

  further delay the ultimate disposition.” TABOR Found. v. Reg’l

  Transp. Dist., 2016 COA 102, ¶ 39 (citation omitted) (cert. granted in

  part, Jan. 23, 2017). On this record, the exception applies.

¶ 47   As in Duggins and Phillips, both Larson and Grinnan had a

  joint interest in successfully prosecuting the Kelley case; their profit

  would depend on the degree of their success. The fee agreement

  reflected that Grinnan was “associated” with Larson and that both

  he and Larson would share in the contingent fee. While the trial




                                     22
  court found that their roles differed, both of them cooperated in

  bringing the case.

¶ 48   Despite these undisputed facts, Larson argues that because

  Grinnan never agreed to be jointly and severally liable for costs, he

  failed to assume financial responsibility. True, only Larson

  obligated himself to pay costs. And on this basis, Larson challenges

  the trial court’s finding that when Grinnan accepted a lower fee

  division from the first settlement, which Grinnan testified was to

  help defray significant costs already incurred by Larson, Grinnan

  assumed financial responsibility.

¶ 49   Recall, Wisconsin considers whether a referring lawyer

  assumes responsibility for costs, but observes that allocation of

  costs is not dispositive. Wis. Ethics Op. E-00-01 (noting that

  assumption of financial responsibility for costs “may be secondary

  to the financial responsibility assumed by the lawyer to whom the

  matter was referred”). We agree that a referring lawyer’s

  responsibility for costs is at most one possible indicator the lawyer

  cooperated in the joint venue. See Compass Ins. Co., 984 P.2d at

  619 (reiterating that third prong of joint liability test is “actions and

  conduct showing joint cooperation in the venture”). And we decline


                                      23
  to attach much weight to responsibility for costs because whether

  such joint responsibility significantly advances the overarching

  purpose of the Rules of Professional Conduct to protect clients, see

  Mercantile Adjustment Bureau, L.L.C., ¶ 15, is questionable. After

  all, the referring lawyer’s joint responsibility for costs in a

  contingency fee arrangement primarily protects third parties, who

  can look to a pocket other than that of the trial specialist.

¶ 50   In the end, we need not address Larson’s costs argument any

  further because the undisputed evidence shows that Grinnan and

  Larson entered into a joint venture for the purposes of representing

  the Kelleys and sharing in the fee. From that arrangement flows

  vicarious malpractice liability. Therefore, we further conclude that

  Grinnan assumed financial responsibility for the case.

           c. Remand is Required as to Ethical Responsibility

¶ 51   The conclusion that financial responsibility can be determined

  from a referring lawyer’s exposure to liability for malpractice of the

  lawyer to whom the case was referred rests on common law

  principles of vicarious and joint and several liability. But one does

  not usually think of ethics and professional discipline in these

  terms. So, do the same principles guide inquiry into ethical


                                      24
  responsibility in terms of a referring lawyer’s exposure to

  professional discipline for unethical conduct of the lawyer to whom

  the case was referred?

¶ 52   No. The Rules of Professional Conduct are “designed to

  provide guidance to lawyers and to provide a structure for

  regulating conduct through disciplinary agencies. They are not

  designed to be a basis for civil liability.” Colo. RPC Preamble ¶ 20.

  And ethical responsibilities primarily arise from court rules not

  common law principles.

¶ 53   As discussed, Comment 7 to Colo. RPC 1.5 provides that “joint

  responsibility . . . entails . . . ethical responsibility for the

  representation as if the lawyers were associated in a partnership.”

  But what constitutes assuming ethical responsibility for a case one

  lawyer refers to another? Answering this question is confounded

  because Comment 7 does not define ethical responsibility, very

  limited authority exists, and the few jurisdictions to have weighed

  in disagree on whether, and to what extent, joint responsibility

  requires a lawyer to ensure ethical responsibility, once that lawyer

  has referred a case to another lawyer. Broadly speaking, two




                                       25
  standards have emerged: one requires the lawyer have some

  involvement in the case; the other requires minimal or no action.

¶ 54   Wisconsin and Ohio have adopted the broader standard. In

  Wisconsin, a referring lawyer must “remain sufficiently aware of the

  performance of the lawyer to whom the matter was referred to

  ascertain if that lawyer’s handling of the matter conforms to the

  Rules of Professional Conduct” by “periodically reviewing the status

  of the matter with that lawyer, the client, or both.” Wis. Ethics Op.

  E-00-01. This requirement implicates “being available to the client

  regarding any concerns of the client that the lawyer to whom the

  matter has been referred is handling the matter in conformity with

  the Rules.” Id. In other words, the referring lawyer must at least

  continue to be available to act on the client’s behalf and to provide

  independent professional judgment. Id. Similarly, Ohio Rule of

  Professional Conduct 1.5(e) provides that to receive a fee division

  disproportionate to the services he or she provides, a referring

  lawyer must assume joint responsibility and agree to be available

  for consultation with the client.

¶ 55   Turning to the minimalist standard, New York limits joint

  responsibility to joint and several financial responsibility, with one


                                      26
  court noting that joint responsibility “does not create an ethical

  obligation of the referring lawyer to supervise the activities of the

  receiving lawyer.” Aiello, 750 N.Y.S.2d at 464-65 (citation omitted).

  The court explained that such a limitation is “the more pragmatic

  approach . . . . [I]t does not make much pragmatic sense that a

  lawyer would be expected to supervise the handling of a matter by a

  specialist, who is more familiar with the case and generally more

  competent in the type of action involved than the referring

  attorney.” Id. at 465.

¶ 56   A similar sentiment appears in Arizona State Bar Ethics

  Opinion 04-02: “It also would be somewhat illogical to require a

  referring attorney to ‘supervise’ the handling of a matter by another

  attorney believed to be more experienced or capable in a particular

  area.” True, Arizona’s version of Rule 1.5 does not include language

  requiring the referring lawyer to accept responsibility as if the

  lawyers were associated in a partnership. Ariz. RPC ER 1.5. Even

  so, Opinion 04-02’s recognition of the challenges presented by

  requiring a referring lawyer to supervise a specialist echoes

  Comment 7 to Colo. RPC 1.5:




                                     27
             A division of fee facilitates association of more
             than one lawyer in a matter in which neither
             alone could serve the client as well, and most
             often is used when the fee is contingent and
             the division is between a referring lawyer and a
             trial specialist.


¶ 57   At first blush, these pragmatic considerations are alluring.

  But fully embracing the minimalist view would ignore Comment 7,

  which explicitly requires assumption of ethical responsibility. While

  the comments are only “intended as guides to interpretation,” Colo.

  RPC Preamble ¶ 21, that limitation is not a license to ignore them

  entirely. And as relevant here, consistent with this interpretative

  function, Comment 7 defines “joint responsibility” to include ethical

  responsibility. But a closer look at Comment 7 and its history

  shows that in this context, and contrary to Larson’s assertion,

  ethical responsibility of the referring lawyer does not entail

  assuming a supervising lawyer’s ethical obligations.

¶ 58   Take the history first. When the ABA revised Model Rule 1.5

  in 2002, the revisers recognized the difficulty in holding a referring

  lawyer to the ethical standards of a supervising lawyer and removed

  the cross-reference to Rule 5.1 (Responsibility of a Partner or

  Supervisory Attorney) from the comment. See ABA Comm’n on


                                    28
  Evaluation of Rules of Prof’l Conduct, Minutes from Meeting in

  Atlanta, Ga. § X (Aug. 6-8, 1999), https://perma.cc/XL2C-QDYC

  (“A member asked why the reference to Rule 5.1 was deleted in

  Comment [5]. The Reporter responded that since there is not a

  supervisory relationship between the lawyers in the joint

  representation, Rule 5.1 is not applicable.”). The Model Rule was

  revised to include language that had been used in ABA Opinion

  85-1514.

¶ 59   Then consider “as if the lawyers were associated in a

  partnership,” which appears in Comment 7 to Colo. RPC 1.5, just

  as in the ABA Model Rule. Neither Colo. RPC 1.5 nor any of its

  comments tell us what this phrase means. But while the Colorado

  version of this comment has never included the cross-reference to

  Colo. RPC 5.1, only Colo. RPC 5.1(a) and (c) spell out the ethical

  obligations — as opposed to the vicarious liability — of a partner in

  a law firm:

             (a) A partner in a law firm, and a lawyer who
             individually or together with other lawyers
             possesses comparable managerial authority in
             a law firm, shall make reasonable efforts to
             ensure that the firm has in effect measures
             giving reasonable assurance that all lawyers in



                                    29
          the firm conform to the Rules of Professional
          Conduct.

          ....

          (c) A lawyer shall be responsible for another
          lawyer’s violation of the Rules of Professional
          Conduct if:

             (1) the lawyer orders or, with knowledge of
             the specific conduct, ratifies the conduct
             involved;

             (2) the lawyer is a partner or has
             comparable managerial authority in the law
             firm in which the other lawyer practices, or
             has direct supervisory authority over the
             other lawyer, and knows of the conduct at a
             time when its consequences can be avoided
             or mitigated but fails to take reasonable
             remedial action.

And these responsibilities can be reconciled with the pragmatic

consideration that because clients usually benefit from referrals to

lawyers with particular expertise, the process should not unduly

burden the referring lawyer. See generally Curtis L. Cornett,

Comment, Ohio Disciplinary Rule 2-107: A Practical Solution to the

Referral Fee Dilemma, 61 U. Cin. L. Rev. 239, 256 (1992) (ABA

Model Rule 1.5(e) “allows small practitioners to receive some type of

compensation for their referrals and, in addition, encourages them

to refer clients to more specialized and more competent attorneys.”).



                                 30
¶ 60   As applied to a referring lawyer, paragraph (a) of Colo. RPC 5.1

  would require that the referring lawyer only “make reasonable

  efforts to ensure that the firm has in effect measures giving

  reasonable assurance.” “Reasonable” does not guarantee an

  outcome; it “denotes the conduct of a reasonably prudent and

  competent lawyer.” Colo. RPC 1.0(h). Comment 3 to Colo. RPC 5.1

  further dilutes the burden by clarifying that the required measures

  “can depend on the firm’s structure and the nature of its practice.”

  Thus, paragraph (a) of Colo. RPC 5.1 does not expose the referring

  lawyer to professional discipline based solely on unethical conduct

  of another lawyer.

¶ 61   Nor does paragraph (c) impose an undue burden on a referring

  lawyer. Because the referring lawyer is outside the receiving

  lawyer’s firm, “reasonable efforts” for a referring attorney is

  necessarily a lower bar than what Rule 5.1(a) would require from a

  partner inside that firm. Otherwise, why would a referring lawyer

  who directs or ratifies unethical conduct — or who turns a blind eye

  toward such conduct rather than take remedial action, while

  adverse consequences could still be avoided — not be subject to

  professional discipline, as would any other similarly situated


                                     31
  lawyer? This paragraph, too, does not make the referring lawyer

  vicariously accountable for unethical conduct of another lawyer,

  absent the referring lawyer’s complicity.

¶ 62   Thus, the referring lawyer’s obligations under either of these

  paragraphs stop far short of the obligations that Rule 5.1(b)

  imposes on supervising lawyers: “A lawyer having direct supervisory

  authority over another lawyer shall make reasonable efforts to

  ensure that the other lawyer conforms to the Rules of Professional

  Conduct.”2

¶ 63   But exactly what must that referring lawyer do to assume

  ethical responsibility? In our view, an approach like that adopted

  in Wisconsin — which requires that a referring lawyer only stay

  abreast of the progress of the matter and be available to address

  any of the client’s ethical concerns — is necessary but not always

  sufficient to establish “reasonable efforts to ensure that the firm has

  in effect measures giving reasonable assurance” of compliance with


  2 This aspect of our discussion is a purely hypothetical analysis. No
  one has suggested that Larson violated the rules of professional
  conduct in his representation of the Kelleys. To the contrary, the
  record shows that after a long and hard fight, he obtained favorable
  settlements.


                                    32
  the Rules. To be sure, the referring lawyer’s staying sufficiently

  abreast of the progress of the case to advise the client might

  encompass the “reasonable efforts” mandate of Colo. RPC 5.1(b).

  Yet, because it also might not, a case-by-case inquiry is essential.

¶ 64   The same picture comes into focus through the lens of

  “responsibility to assure adequacy of representation” under ABA

  Opinion 85-1514. In the ethical context, some types of professional

  misconduct could harm the client who had been referred. For

  example, Colo. RPC 1.3 requires “reasonable diligence and

  promptness.” So, assuring adequacy of representation would

  require some awareness of “measures giving reasonable assurance”

  of ethical compliance.

¶ 65   Undaunted, Grinnan asserts that he assumed ethical

  responsibility for the case merely by representing the Kelleys. While

  correct, this assertion only gets Grinnan half way. It ignores Colo.

  RPC 1.5 Comment 7’s use of “joint” to modify “ethical

  responsibility.” Thus, the inquiry returns to the referring lawyer’s

  assuming responsibility for the actions of the trial specialist.

¶ 66   In sum, the more balanced view requires that to assume

  ethical responsibility, the referring lawyer must:


                                    33
        actively monitor the progress of the case;

        “make reasonable efforts to ensure that the firm [of the lawyer

         to whom the case was referred] has in effect measures giving

         reasonable assurance that all lawyers in the firm conform to

         the Rules of Professional Conduct,” Colo. RPC 5.1(a); and

        remain available to the client to discuss the case and provide

         independent judgment as to any concerns the client may have

         that the lawyer to whom the case was referred is acting in

         conformity with the Rules of Professional Conduct.

¶ 67     For reasons known only to the trial court, it made no findings

  as to whether Grinnan assumed ethical responsibility for the Kelley

  case. The record does not expressly indicate that Grinnan assumed

  ethical responsibility. But whether that would be a fair inference to

  draw from his interaction with Larson and extensive

  communications with Mr. Kelley is within the province of the trial

  court. See Target Corp. v. Prestige Maint. USA, Ltd., 2013 COA 12,

  ¶ 24 (“It is the trial court’s sole province to resolve disputed factual

  issues and to determine witnesses’ credibility, the weight to accord

  testimony, and the inferences to be drawn from the evidence.”).




                                     34
  Additionally, the court did not have the benefit of the standard that

  we have adopted.

¶ 68   Therefore, we remand the case to the trial court to determine

  whether Grinnan assumed ethical responsibility, applying the

  three-part test we have articulated. See Dempsey, ¶ 19. The court

  shall make further findings on the existing record. If the court finds

  that Grinnan assumed ethical responsibility, then the court’s fee

  award stands, subject to an appeal by Larson.3 But if the court

  finds that Grinnan did not assume ethical responsibility, then he is

  only entitled to fees in proportion to the services he performed, with

  the referral fees to be reallocated to Larson, subject to an appeal by

  Grinnan.

  3 At oral argument, Larson asserted that under a theory of quantum
  meruit, Grinnan may only recover an hourly rate for the services
  provided. But neither case Larson relied on supports this
  proposition. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law
  Firm, L.L.C., 2012 CO 61, ¶¶ 19-30 (holding that an attorney may
  recover the reasonable value of services provided to former
  co-counsel under a theory of quantum meruit); Law Offices of J.E.
  Losavio, Jr. v. Law Firm of Michael W. McDivitt, P.C., 865 P.2d 934,
  937 (Colo. App. 1993) (allowing division of contingent fee but
  remanding for further factual findings). In any event, Larson did
  not assert this argument in his briefs, and therefore we do not
  consider it. See Qwest Corp. v. Colo. Div. of Prop. Taxation, 310 P.3d
  113, 125 (Colo. App. 2011) (declining to address assertion first
  made at oral argument).


                                    35
                              CROSS-APPEAL

   III. The Propriety of the Trial Court’s Drawing on “Its Experience
  both in Private Practice and on the Bench” Is Not Properly Before Us

¶ 69   On cross-appeal, Grinnan does not assert that the trial court’s

  fee allocation was clearly erroneous. Instead, he challenges the

  allocation because the court relied on its personal experience rather

  than accepting the allocation proposed by his expert. But Grinnan

  did not preserve this issue.

¶ 70   Civil cases too numerous to cite say that “issues not raised in

  or decided by a lower court will not be addressed for the first time

  on appeal.” See, e.g., Robinson v. Colo. State Lottery Div., 179 P.3d

  998, 1008-09 (Colo. 2008). Under C.A.R. 1(d), however, “appellate

  courts also have the discretion to notice any error appearing of

  record, whether or not a party preserved its right to raise or discuss

  the error on appeal.” Id. at 1008. That said, failure to object

  usually means that the issue will not be considered on appeal. See,

  e.g., Murray v. Just In Case Bus. Lighthouse, LLC, 2016 CO 47M,

  ¶ 30 n.7 (“We agree with the court of appeals that Murray failed to

  preserve this issue for appeal because he did not object to Sumner’s

  testimony on this basis at trial.”).



                                     36
¶ 71   Applying these familiar principles, we first conclude that

  Grinnan failed to preserve an objection to the trial court’s reliance

  on its personal experience. Next, we discern no reason to exercise

  our discretion and take up this unpreserved issue.

                         A. Lack of Preservation

¶ 72   At the December 1, 2015, hearing, and before taking further

  testimony, counsel and the trial court discussed several procedural

  issues. Before taking further testimony, the court told counsel:

            And if the parties are okay, I can take judicial
            notice of the fact that I also have tried
            explosion cases in a previous life, I have pieces
            of a bomb on my desk, actually, where I spent
            one year of my life working on one case solely.
            So I know how much work these things are. It
            was a little different, it was in the criminal
            context, but I was the only attorney and it was
            incredibly difficult to get the thing together, get
            it ready, and then I actually took it all the way
            through trial. So if that helps people
            remembering that and viewing what I saw in
            the case in terms of everything that was filed
            and everything that was done, I’m certainly
            willing to take judicial notice of all that, too, so
            — but you don’t have to agree to anything.

  Larson’s attorney replied, “I understand.” Grinnan’s attorney

  moved on to another procedural issue.




                                    37
¶ 73   Grinnan does not identify any point during the hearing — or,

  for that matter, any point before the court ruled — where his

  attorney expressed concern over the court’s reference to taking

  “judicial notice” of its personal experience. See C.A.R. 28(a)(7)(A)

  (Arguments must include “whether the issue was preserved, and if

  preserved, the precise location in the record where the issue was

  raised and where the court ruled.”). Instead, Grinnan responds

  that “such an objection would have been futile and thus

  unnecessary to preserve the issue.”4 His response misses the mark

  in three ways.

¶ 74   First, according to Grinnan, “the [trial] court simply could not

  have taken judicial notice of his personal experience.” Under CRE

  4 According to Grinnan’s reply brief: “Thus, Grinnan did preserve
  the issue by the steps he took by filing his motions after judgment.”
  However, he provides no record citation. See C.A.R. 28(a)(7)(A)
  (requiring, for preserved issues, “the precise location in the record
  where the issue was raised”); Shiplet v. Colo. Dep’t of Revenue, 266
  P.3d 408, 412 (Colo. App. 2011) (“However, Shiplet has failed to
  indicate where he raised the issue of ADA compliance at his hearing
  below. We therefore decline to reach this issue.”); O’Quinn v. Baca,
  250 P.3d 629, 632 (Colo. App. 2010) (noting that the court is under
  no obligation to search the record to determine whether an issue
  was raised and resolved, and that “parties ‘should not expect the
  court to peruse the record without the help of pinpoint citations’.”
  (quoting L.S.F. Transp., Inc. v. Nat’l Labor Relations Bd., 282 F.3d
  972, 975 n.1 (7th Cir. 2002))).


                                    38
  201(b), he may be correct. But the language from this rule that he

  cites on appeal — “[a] judicially noticed fact must be one not

  subject to reasonable dispute” — affords ample reason why his

  counsel should have raised a contemporaneous objection. See

  Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986)

  (The primary purposes of the contemporaneous objection rule is “to

  permit the trial court to accurately evaluate the legal issues and to

  enable the appellate court to apprehend the basis of the

  objection.”).

¶ 75   Second, Grinnan asserts that “the [trial] court did not take

  judicial notice of the specific facts it intended to use.” But the trial

  court’s statement — “I know how much work these things are” —

  belies this assertion. In apportioning the fee, “how much work

  these things are” would be relevant. And in any event, Grinnan’s

  counsel could have asked the court about what additional facts it

  contemplated judicially noticing. For example, counsel could have

  asked the court — as Grinnan proposes in his cross-reply brief —

  “whether the law or jurisdictions were similar.” Why he did not do

  so remains unexplained.




                                     39
¶ 76   Third, Grinnan questions holding that a party waives appellate

  review “simply by not objecting to a judge’s toss-away comment.”

  But the “toss-away” characterization rings hollow because the court

  expressly referred to “tak[ing] judicial notice.” And as Grinnan

  argues in his first point, judicial notice is a formal process, limited

  by CRE 201(b) and interpreted by many Colorado cases, several of

  which Grinnan cites.

¶ 77   In sum, this issue was not preserved.

                         B. Discretionary Review

¶ 78   Not easily deterred, Grinnan asserts that even if the issue was

  not preserved, this court should exercise discretion and take it up.

  But Grinnan argues only that we should do so “in light of the

  prejudicial errors that occurred in the [trial] court as further

  explained below and in Grinnan’s Opening-Answer Brief.” This

  argument ignores the larger point.

¶ 79   Grinnan cites no authority — nor are we aware of any in

  Colorado — holding that other preserved errors give an appellate

  court license to ignore the contemporaneous objection requirement

  as to an unpreserved error. And to the extent that Grinnan’s

  argument implies a nexus between other preserved errors and this


                                     40
  unpreserved error, “[t]he doctrine of cumulative error, although

  applied regularly in criminal appeals, has not been extended to civil

  cases.” Acierno By & Through Acierno v. Garyfallou, 2016 COA 91,

  ¶ 66.

¶ 80      For all of these reasons, we decline to take up the judicially

  noticed personal experience issue.

   IV. The Trial Court Did Not Err in Awarding Prejudgment Interest
       to Larson on the Basis of Grinnan’s Wrongful Withholding

¶ 81      After Grinnan filed an attorney’s lien, Larson proposed that

  thirty-five percent of the attorney fees be put in escrow until the

  dispute was resolved. This proposal would give Larson access to

  sixty-five percent of the fees. Grinnan disagreed, explaining:

               In this instance all attorney’s fees are in
               dispute and thus they all must be placed in
               trust or escrow until the dispute is
               resolved. . . . The fee agreement in this matter
               provides that Mr. Grinnan “shall be paid a
               percentage of the firm’s fee, not to exceed
               100%.” Thus, at this time and until this
               matter is resolved (either through an
               agreement between the parties or through
               litigation), all attorney’s fees are in dispute.

  Following extensive argument, the trial court held:

               No attorney’s fees to any attorney shall be paid
               from the settlement unless the parties
               stipulate to doing so. All remaining funds


                                       41
            shall be placed by Mr. Larson into a separate
            interest-bearing account. The funds in the
            interest-bearing account shall remain in the
            account until further order of the Court.

¶ 82   After the court entered its order allocating the attorney fees,

  both parties moved for prejudgment interest under section

  5-12-102(1)(a). As relevant here, Larson argued that he was

  entitled to prejudgment interest because he had been “deprived of

  the use his portion of the undisputed amounts.” Grinnan

  responded that that he did not wrongfully withhold Larson’s portion

  of the attorney fees because he lacked control over them; rather,

  Lawson had deposited them into a restricted account, as the trial

  court had ordered.

¶ 83   The trial court agreed with Larson:

            The Court, in its previous order regarding
            attorney’s fees, found and continues to find
            that Mr. Grinnan provided a very limited
            amount of services to the plaintiffs in this
            case. Mr. Grinnan’s claims for attorney’s fees
            are far in excess of what any reasonable
            attorney would demand based upon the
            limited amount of work he performed on the
            case. At the start of this dispute, the Court
            granted Mr. Grinnan’s request that all the
            attorney’s fees in this case be placed in a
            restricted interest bearing account. The
            demand by Mr. Grinnan that 100% of the fees
            be placed in a restricted account was, as a


                                    42
              practical matter a wrongful withholding of
              money from Mr. Larson entitling Mr. Larson to
              receive interest pursuant to CRS 5-12-102.

                      A. Standard of Review and Law

¶ 84     An appellate court reviews the trial court’s interpretation of a

  statute de novo and its findings of fact for clear error. See Semler,

  ¶ 19; Hoskins, ¶ 17.

¶ 85     Section 5-12-102(1)(a) provides a statutory rate of interest for

  money or property wrongfully withheld. “[W]rongfully withheld,” as

  used in section 5-12-102(1), means an aggrieved party is deprived

  of the use of money to which the party was otherwise entitled. See

  Goodyear Tire & Rubber Co. v. Holmes, 193 P.3d 821, 825 (Colo.

  2008).

¶ 86     As a result of a wrongful withholding, the aggrieved party

  suffers a loss, frequently termed the “time value of money.” Id. at

  826; see Mesa Sand & Gravel Co. v. Landfill, Inc., 776 P.2d 362, 364

  (Colo. 1989). This lost value is caused by inflation, reducing the

  value of money over time, and by the aggrieved party’s inability, due

  to the withholding, to earn any return. Goodyear Tire, 193 P.3d at

  826.




                                      43
¶ 87   Even so, wrongful withholding does not require tortious or bad

  faith conduct. Benham v. Mfrs. & Wholesalers Indem. Exch., 685

  P.2d 249, 254 (Colo. App. 1984). Instead, courts have given this

  term “a broad, liberal construction” that focuses on “whether money

  or property was wrongfully withheld from the nonbreaching party

  and not whether the nature of the conduct of the breaching party

  brings him or her within the ambit of the statute.” Rodgers v. Colo.

  Dep’t of Human Servs., 39 P.3d 1232, 1237-38 (Colo. App. 2001).

                               B. Analysis

¶ 88   Grinnan contends the trial court erred in finding a wrongful

  withholding under section 5-12-102 because until the court

  allocated the fees, “neither party knew how much of the attorney

  fees Mr. Larson and Mr. Grinnan would receive.” Thus, he

  continues, filing an attorney’s lien against all the fees and urging

  that they be placed in a restricted account could not have

  constituted a wrongful withholding.

¶ 89   True, how the attorney fees would be allocated was unknown

  at the time Grinnan filed the attorney’s lien and later when he

  requested that the fees be placed in a restricted account. But “an

  attorney’s lien which misstates facts and is utilized to overreach


                                    44
  and to force payment of more than is owed cannot be tolerated.”

  People v. Radinsky, 182 Colo. 259, 261, 512 P.2d 627, 628 (1973).

  And under Colo. RPC 1.15A(c), only “the portion [of the attorney

  fees] in dispute” was required to be kept in a separate account until

  the dispute resolved.

¶ 90   The trial court found that Grinnan’s request to put all the fees

  into a restricted account far exceeded “what any reasonable

  attorney would demand based upon the limited amount of work he

  performed on the case.” Grinnan does not challenge this finding as

  clearly erroneous, nor could he. He testified during the attorney

  fees hearing that his compensation should be “somewhere from the

  middle of the difference between the 25 percent and one-third . . .

  towards the 25 percent.” His expert offered a similar opinion as to

  customary fees splits between a referring attorney and a trial

  specialist in Colorado.

¶ 91   Yet, by filing an attorney’s lien against all the fees and then

  requesting that the court place them “in trust or escrow until this

  dispute is resolved,” Grinnan deprived Larson of the use of money

  to which only he was entitled. These actions establish a wrongful

  withholding under section 5-12-102(1)(a).


                                    45
¶ 92   Despite his undisputed actions, now Grinnan emphasizes that

  he did not wrongfully withhold the attorney fees because they were

  placed into a restricted account based on the court’s order. But to

  be clear, the court ordered that no “fees to any attorney shall be

  paid from the settlement unless the parties stipulate to doing so.”

  Thus, Grinnan could have stipulated to disbursing to Larson from

  the settlement the portion of fees beyond Grinnan’s claim. In any

  event, and as a matter of law, the trial court’s order does not shield

  Grinnan.

¶ 93   A similar argument was rejected in Rodgers, where the division

  awarded interest under section 5-12-102 on back pay that a state

  employee had been required to return when the back pay award

  was reversed on appeal. 39 P.3d at 1238. The division explained

  that the employee was, “in effect, the breaching party because he

  demanded and received money from [the state] that a division of

  this court determined he was not entitled to receive.” Id. And

  because he “was never entitled to the money . . . he has been

  wrongfully withholding it since the time he received it.” Id.

¶ 94   In so holding, the division rejected the employee’s argument

  “that he could not have been wrongfully withholding the money


                                    46
  because he received it pursuant to the [State Personnel] Board’s

  order.” Id. The division explained that this “argument fails because

  it only views the situation from the perspective of [employee’s]

  conduct and does not take into account the harm suffered by [the

  state].” Id. The same is true here.

¶ 95   Finally, Grinnan asserts that he could not have wrongfully

  withheld the fees because he never had control over the restricted

  account. But at Grinnan’s urging, the trial court ordered that the

  attorney fees be placed in a restricted account. And once Grinnan

  filed an attorney’s lien against all of the fees, Larson was deprived of

  their use.

¶ 96   Thus, we conclude the trial court properly awarded Larson

  prejudgment interest.

         V. The Trial Court May Reconsider Its Ruling on Costs

¶ 97   Both parties sought costs under C.R.C.P. 54(d), which

  provides: “Except when express provision therefor is made either in

  a statute of this state or in these rules, reasonable costs shall be

  allowed as of course to the prevailing party . . . .” The trial court

  denied the requests. It concluded that “it did not rule in favor of




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  either of the attorneys and finds that neither was the prevailing

  party.”

¶ 98   “Determining the reasonableness and necessity of costs is

  within the trial court’s discretion and will vary on a case-by-case

  basis.” In re Estate of Fritzler, 2017 COA 4, ¶ 40. Given our

  remand, after the trial court makes further findings on joint ethical

  responsibility, the court may reconsider its costs ruling and, if

  appropriate, modify it.

                             VI. Conclusion

¶ 99   The attorney fee award is vacated, the cross-appealed rulings

  are affirmed, and the case is remanded for additional proceedings

  consistent with this opinion.

       JUDGE BOORAS and JUDGE FREYRE concur.




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