The Civil Litigator

JurisdictionColorado,United States
CitationVol. 9 No. 3 Pg. 517
Publication year1980
9 Colo.Law. 517
Colorado Lawyer

1980, March, Pg. 517. The Civil Litigator


Vol. 9, No. 3, Pg. 517

The Civil Litigator

Ad Hoc Editorial Committee:Charles J. Kall, Patrick F. Kenney, Richard P. Holme

Are Communications With a Paralegal Privileged?

In an order awarding fees for a corporate reorganization,(fn1) Federal District Court Chief Judge Fred M. Winner asked whether communications between a client and a paralegal are privileged under existing Colorado law.(fn2) Judge Winner refused to award fees for a paralegal's time, absent an express agreement between attorney and client. Regardless of the state law of privilege, Judge Winner stated, in dictum, that he was certain that there was no such privilege at common law or in the federal courts. Judge Winner's order stated in part:

I'm told that clients a "paralegals" meet and discuss things, or that lawyers and clients confer with a "paralegal" present and I am waiting for the day a judge has to decide whether those communications are privileged. If the "paralegal" is a "secretary, stenographer or clerk," the communication is privileged under 1973 C.R.S. 13-90-107, but I have never heard it argued that the time of a "secretary, stenographer or clerk" should be separately billed. . . . I do not challenge the right of attorney and client to expressly contract for the separate billing of a "paralegal's" time, but in the absence of such an agreement, I will not separately award it. And, even if there be such an agreement, I seriously question whether there is any privilege under state statute, and I am certain that there is no privilege under common law. So, unless the claim is founded on state law, a "paralegal" would have no privilege in the federal court. . . . I think the client should be cautioned in this area.(fn3) (Emphasis added.)

Colorado Law

Colorado's statutory attorney-client privilege was expanded in 1911 to include a lawyer's secretary, stenographer, or clerk, seemingly in an attempt to describe generally the types of legal employees to whom the privilege attached when such employees were exposed to a client's confidences. Today, attorneys employ members of a hybrid class, namely, "paralegals," who frequently perform such varied tasks as accounting and financial analysis; preliminary title examinations; factual research, including preliminary or initial interviews of clients; and client document review, analysis and examination.


Paralegals therefore often perform both skilled and clerical functions. These employees are frequently (if not customarily) entrusted with confidential client information in order to assist their employers in the rendition of legal services. The growing practice of utilizing paralegals rests on the assumption that the confidential client information they receive will remain fully privileged. Is that assumption correct?

The Colorado statute does not define "secretary, stenographer or clerk," but it is suggested that these labels are descriptive only, and not definitive. Even a court not disposed toward a liberal interpretation of the statute would be unreasonable to conclude that the word "clerk," standing alone, is not sufficiently broad enough to encompass law clerks, file clerks, accounting clerks, record clerks, telephone clerks (operators) and copy clerks. Many of the tasks now performed by paralegals were once the jobs assigned to junior associates and law clerks.

Similarly, the word "secretary" must, or should, include legal secretary, mag. card operator, telex typist and computer punch card operator. Many of the duties of a paralegal are not dissimilar to those performed by an all-purpose and highly skilled legal secretary. Judge Winner seemed to agree with this analysis, but at the same time he strongly argued that paralegals are outside the ambit of the privilege.(fn4)

On the other hand, Professor Wigmore would have no difficulty in concluding that confidential client communications entrusted to a paralegal should be covered by the privilege. Wigmore states:

It has never been questioned that the privilege protects communications to the attorney's clerks, and his other agents . . . for rendering his services on the theory that the assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney's agents.(fn5) (Emphasis...

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