Colorado’s attorney-client privilege protects the communications between you and your attorney. With rare exceptions, courts cannot force you or your current or former attorneys 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?
- Additional reading
It is the lawyer’s duty to protect the client’s right of privileged documents and information.
1. What qualifies as attorney-client privilege?
The attorney-client privilege protects confidential communications made between you and your lawyers. Communications are protected by the attorney-client privilege as long as:
- you – as a current, former, or 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:
- paralegal,
- legal assistant, and/or
- other office staff
This privilege belongs to you as the client, and it is up to you to decide if you want to disclose these communications. Communications between an attorney and you as a prospective client are confidential even if you do not hire the attorney. 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 you and your lawyer. Attorneys must have all the information available to give you accurate advice and effective legal representation.
2. What is covered by the attorney-client privilege?
The privilege protects all confidential communications in an attorney-client relationship.3 This may include an initial consultation with an attorney, even if you do not end up hiring the attorney. The privilege applies to such attorney-client communications as:
- in-person meetings,
- 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.
If you tell your lawyer something confidentially, the lawyer should treat that information as confidential. However, 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.
Lawyers who reveal privileged written or oral communications could face disbarment or other penalties.
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.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 your approval (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 you 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. 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. After you pass away, 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. Nor does it matter how long ago you hired the attorney.
7. What are the exceptions to the attorney-client privilege?
While the privilege covers confidential communications between you and your attorney, there are some exceptions.
Crime-fraud exception
Under the crime-fraud exception, attorneys may reveal subject matter related to their representation of you if it is necessary:
- to prevent reasonably certain death or substantial bodily harm;
- to reveal your intention to commit a crime, and the information necessary to prevent the crime; or
- to prevent you from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another, and you 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 you pursued the attorney’s advice with the intent to use such information to commit the crime or fraud.7
Bankruptcy cases
Bankruptcy filings often involve client information that attorneys would normally keep confidential. Though the attorney-client privilege does not attach in bankruptcy cases if you had no intent that the information remains confidential.8
Additional reading
For more in-depth information, refer to these scholarly articles:
- The Attorney-Client Privilege and Former Employees – Catholic University Law Review.
- The Economics of the Attorney-Client Privilege: A Comprehensive Review and a New Justification – Ohio Northern University Law Review.
- Captive without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals – UCLA Law Review.
- Joint Representations and the Attorney-Client Privilege – University of Memphis Law Review.
- Two Rights Collide: Determining When Attorney-Client Privilege Should Yield to a Defendant’s Right to Compulsory Process Or Confrontation – American Criminal Law Review.
Legal References/Citations
- 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; DiPietro v. Coldiron (Colo.App. 2022) 523 P.3d 1019; People ex rel. J.P. (Colo. 2023) 538 P.3d 337.
- 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.
(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.
- 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.’)”.