Colorado’s attorney-client privilege protects the communications between attorneys and their clients. With rare exceptions, courts cannot force lawyers or their current or former clients to disclose these protected communications – whether they took place
- in person,
- over the phone, or via
- text message,
- emails, or
- written letters.
“Confidential communications” comprise any information not intended to be revealed to another person.
In this article, our Denver Colorado criminal defense lawyers will address:
- 1. What qualifies as attorney-client privilege?
- 2. What is covered by the attorney-client privilege?
- 3. What is an example of attorney-client privilege?
- 4. Does my lawyer have a duty of confidentiality?
- 5. Are attorney invoices privileged in Colorado?
- 6. Does attorney-client privilege survive death in Colorado?
- 7. What are the exceptions to the attorney-client privilege?
1. What qualifies as attorney-client privilege?
The attorney-client privilege protects confidential communications made between lawyers and their clients. Communications are protected by the attorney-client privilege as long as:
- the client – or a prospective client – communicated information to an attorney;
- the communication was done in confidence; and
- the communication was for seeking or getting legal advice.
All communications are considered confidential as long as they were not meant to be communicated to other third parties. The privilege protects communications with the attorney even if the conversations were overheard by the attorney’s:
- legal assistant, and/or
- other office staff
This privilege belongs to the client, and it is up to the client to decide if they want to disclose these communications. Communications between an attorney and a prospective client are confidential even if the potential client does not hire the attorney. And attorneys cannot disclose privileged communications even after a case is over.1
The attorney-client privilege is one of the oldest privileges for confidential communications in law, going back hundreds of years to the common law. The United States Supreme Court stated of the attorney-client privilege:
Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer’s being fully informed by the client.2
In short, this privilege is essential to ensuring open communication between the client and their lawyer. Attorneys need to have all the information available to give their clients accurate advice and effective legal representation.
2. What is covered by the attorney-client privilege?
All confidential communications in an attorney-client relationship are protected by the privilege.3 This may include an initial consultation with an attorney, even if the person does not end up hiring the attorney. The privilege applies to such attorney-client communications as:
- in-person meetings,
- phone call communications,
- text messages,
- letters, or
- even notes written on a paper passed to an attorney, as long as there is a reasonable expectation that they remain privileged.
If you tell something confidential to your lawyer, the lawyer should treat that information as confidential. But if you tell a friend the same information, the friend is not bound by the privilege and can reveal it to others.
A separate but related protection involves the work-product doctrine. The work-product doctrine protects materials prepared in anticipation of and during criminal proceedings.
3. What is an example of attorney-client privilege?
An attorney is representing Tom, who was charged with shoplifting. During a private meeting between the attorney and Tom, Tom admits that he once shoplifted in the past and did not get caught. This information is privileged, and the attorney may not disclose it to anyone unless Tom gives the attorney permission or Tom publicizes the information himself.
4. Does my lawyer have a duty of confidentiality?
Your lawyer has a legal and ethical duty of confidentiality. According to Rule 1.6 of the Colorado Rules of Professional Conduct:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;
(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or
(8) to comply with other law or a court order.
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.4
Even after the attorney-client privilege has ended, the attorney still may not reveal any confidential information.5
Lawyers face serious penalties for revealing something confidential without getting approval from their client (such as through a waiver) – even if the disclosure was an accident. Possible consequences include:
- sanctions for ethical violations, including being disbarred; and
- a civil claim for professional malpractice by the client against the attorney.
In some situations, an attorney may be required to reveal privileged information pursuant to a court order subpoena.
5. Are attorney invoices privileged?
Attorney invoices for legal services are generally considered privileged since they often contain details of the representation. But depending on the circumstances, attorneys may be able to produce redacted copies without violating privilege rules.6
6. Does attorney-client privilege survive death in Colorado?
Yes. The attorney-client privilege survives the death of a client or former client in Colorado. Even after death, an attorney’s duty of confidentiality still stands. It does not matter whether the attorney is a private practitioner, defense attorney, prosecutor, general counsel/in-house counsel, outside counsel, or a government attorney.
7. What are the exceptions to the attorney-client privilege?
While the privilege covers confidential communications between client and attorney, there are some exceptions.
7.1. Crime-fraud exception
Under the crime-fraud exception, attorneys may reveal subject matter related to the representation of a client if it is necessary:
- to prevent reasonably certain death or substantial bodily harm;
- to reveal the client’s intention to commit a crime, and the information necessary to prevent the crime; or
- to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the ﬁnancial interests or property of another, and the client used the lawyer’s services to further this fraud
Example: Ted tells his attorney he planted a bomb that will go off in a school in 24-hours. Even though the communication would be considered confidential, the lawyer can reveal this information in order to prevent death or injury.
In order for the attorney to break confidentiality, the attorney has the burden to show the court the necessary facts (“prima facie” case) that the client pursued the attorney’s advice with the intent to use such information to commit the crime or fraud.7
7.2. Bankruptcy cases
Bankruptcy filings often involve client information that attorneys would normally keep confidential. But the attorney-client privilege does not attach in bankruptcy cases if the client had no intent that the information remains confidential.8
For additional help…
If you are seeking legal opinions or have any questions about understanding the attorney-client privilege or the confidential relationship between lawyers and their clients, please contact our legal counsel at Colorado Legal Defense Group. We have law offices in Denver, Colorado Springs, and Loveland. And we handle criminal cases and personal injury legal matters in all Colorado state jurisdictions, including trial courts, appellate courts, and the United States District Court of Colorado (federal court).
- Colorado Supreme Court
- Colorado Revised Statutes (C.R.S.) (Colorado laws)
- Colorado Rules of Civil Procedure (C.R.C.P.)
- Model Rules of Professional Conduct
- See In re Sealed Case, (1984) 737 F.2d 94, 237 U.S. App. D.C. 312 (“Communications from attorney to client are shielded if they rest on confidential information obtained from the client….when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged…In a given case, advice prompted by the client’s disclosures may be further and inseparably informed by other knowledge and encounters. We have therefore stated that the privilege cloaks a communication from attorney to client ‘based, in part at least, upon a confidential communication [to the lawyer] from [the client].'”); see Black v. Southwestern Water Conservation Dist., (Colo. App. Div. 1, 2003) 74 P.3d 462. (“And as I said in my earlier order, I’m inclined to think that the attorney/client privilege should be at a minimum carefully construed, and I declined to adopt [Taxpayers’] suggestion that I have to construe it as narrowly as possible. In order to give effect to the privilege and make it meaningful, I think it has to be given some latitude.”). See also these court decisions: Swidler & Berlin v. United States, (1998) 524 U.S. 399; United States v. Bauer (9th Cir. 1997) 132 F.3d 504; United Shoe Mach. Corp., (D. Mass. 1950) 89 F. Supp. 357; Handguards, Inc. v. Johnson & Johnson, (N.D. Cal 1975) 69 F.R.D. 451.
- Upjohn Co. v. United States, (1981) 449 U.S. 383, 101 S. Ct. 677.
- Klancke v. Smith, 829 P.2d 464, 466 (Colo. App. 1991), cert. denied, May 18, 1992
- COLO.RPC 1.6.
- COLO.RPC. 1.9(c); see also Gordon v. Boyles (Colo. 2000) 9 P.3d 1106, 1123.
- See, e.g., Colorado Bar Formal Ethics Opinion 107 (September 18, 1999).
- COLO.RPC. 1.6(b); See In re Sealed Case, (DC Cir, 1996) 107 F.3d 46, 1323 U.S. App. D.C. 23 (“The relationship between client and counsel may, however, be abused. And so the attorney-client privilege is subject to what is known as the crime-fraud exception. Two conditions must be met. First, the client must have made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act. Second, the client must have carried out the crime or fraud. In other words, the exception does not apply even though, at one time, the client had bad intentions…As a party seeking to overcome the attorney-client privilege, the government satisfies its burden of proof if it offers evidence that if believed by the trier of fact would establish the elements of an ongoing or imminent crime or fraud.…With respect to work product immunity, the crime-fraud exception calls for a somewhat different inquiry than with the attorney-client privilege. The focus is not on the client’s intent regarding a particular communication, but on the client’s intent in consulting the lawyer or in using the materials the lawyer prepared. The question is: Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?”).
- United States v. Naegele, (DC Cir., 2007) 468 F. Supp. 2d 165 (“The burden is on the one claiming privilege to present sufficient facts to establish with reasonable certainty that the privilege applies…‘When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence because the information is to be disclosed on documents publicly filed with the bankruptcy court.’)”.