Colorado’s attorney-client privilege protects the communications between attorneys and their clients. With rare exception, 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 Colorado criminal defense lawyers will address:
- 1. What is the attorney-client privilege?
- 2. What is covered by the attorney-client privilege?
- 3. Does my lawyer have a duty of confidentiality?
- 4. What is not covered by the attorney-client privilege?
The attorney-client privilege protects confidential communications made between the lawyer and their client. All communications are considered confidential as long as they were not meant to be communicated to other third parties. This generally protects communications with the attorney even if the lawyer’s paralegal or legal assistant was also present at the time.
This privilege belongs to the client and it is up to the client to decide if they want to disclose these communications. There are only a few exceptions to the privilege, and the attorney cannot disclose the communications they had with their client even after a case is over.
The attorney-client privilege is one of the oldest privileges for confidential communications in law, going back hundreds of years. This protected privilege is essential to ensuring open communication between the client and their lawyer. The attorney needs to have all the information available to give their client accurate advice and effective legal representation.
The attorney-client privilege covers all confidential communications that are intended to be communicated between the client and their lawyer. The privilege for attorney-client communications generally starts when the attorney-client relationship begins. Privileged communications occur when the client seeks and receives the advice of a lawyer concerning the legal consequences of the client’s past acts or future actions.1
All confidential communications are protected by the privilege. This may include an in-person conversation with an attorney during their initial consultation. It also applies to phone call communications, text messages, emails, letters, or even notes written on a paper passed to an attorney, as long as there is a reasonable expectation that they remain privileged. As long as these communications are kept between the attorney and client, and not disclosed to third parties, they are considered confidential.
A separate, but related, protection involves the work-product doctrine. The work-product doctrine protects materials prepared in anticipation of, and during the criminal proceedings. Talk to your attorney to make sure you understand what kind of materials will be confidential.
Your lawyer has a legal and ethical duty of confidentiality. Pursuant to the Colorado Rules of Professional Conduct, “a lawyer shall not reveal information relating to the representation of a client.”2 Even after the attorney-client privilege has ended, the client is still protected by the duty of confidentiality.3
If a lawyer discloses something confidential without getting approval from their client (such as through a waiver), they can face serious penalties – even if the disclosure was inadvertent. A lawyer who improperly disclosed attorney-client information could face sanctions for ethical violations, including being disbarred. Additionally, the client may have a civil claim for professional malpractice against the attorney.
In some situations, an attorney may be required to reveal privileged information pursuant to a court order subpoena.
While the privilege covers confidential communications between client and attorney, there are some exceptions.4 In some cases, an attorney may reveal subject matter related to the representation of a client. Some of these exception include information from a particular communication 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; and
- 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 (crime fraud exception)
For example, let’s say an individual planted a bomb that would go off in a school in 24-hours. The individual was then arrested on an unrelated arrest warrant in Colorado. If he or she told the attorney they had planted a bomb that was soon to go off, the attorney may reveal information about the bomb. Even though the communication would be considered confidential, the lawyer can reveal the information in order to prevent death or bodily harm.
The attorney-client privilege only protects the confidential information exchanged between you and your lawyer. If you tell something confidential to your lawyer, they should treat that information as confidential. However, if you tell a friend the same information, the friend cannot claim the same privilege. The privilege does not protect the underlying information.
The attorney and client must take reasonable measures to preserve their confidentiality. Disclosing the information to a third party may waive the privilege. For example, if you are talking in a hallway about something and people walking by are able to hear what you are saying, that may not be considered confidential because you are not taking precautions to prevent others from overhearing.
If you have any questions about the attorney-client privilege or the confidential relationship between a lawyer and their client, please contact us at Colorado Legal Defense Group. Our law office is in Denver, but we appear in trial courts, appellate courts, and United States district courts throughout the state.
Disclaimer: Past results do not guarantee future results.
- Colorado Supreme Court
- Colorado Revised Statutes (C.R.S.)
- Colorado Rules of Civil Procedure (C.R.C.P.)