Attorney-client Privilege-the Colorado Law
| Publication year | 1983 |
| Pages | 766 |
1983, May, Pg. 766. Attorney-Client Privilege-The Colorado Law
There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:
(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; ...(fn1)
The offer of an ... attorney ... as a witness shall be deemed a consent to the examination, within the meaning of § 13-90-107[(1)(b)]. ...
Lawyers rely daily on the protection of the attorney-client privilege to shield their client consultations, but few lawyers focus on the limitations, exceptions and waivers which surround that privilege. They thereby risk embarrassing disclosures should they find themselves witnesses in their clients' lawsuits. In Colorado, the privilege is not so all-encompassing as the general impression suggests. This article discusses Colorado case law on the attorney-client privilege and touches on the lawyer as a witness problem.(fn2) Recently, attorney-client privilege issues have appeared in the Colorado advance sheets.(fn3)
The attorney-client privilege statute (see box) has been inconsistently interpreted in the Colorado cases---some have closely restricted the privilege to the statutory language; others have expanded the privilege to any discussion in the course of the attorney-client relationship. An early case shortly after enactment of the privilege statute in 1883 triggered the confusion on the scope of the privilege:
Later in the same case the court seemingly expanded the privilege to encompass the entire consultation.(fn5)If a person, in respect to his business affairs or troubles of any kind, consults with an attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily commits or acquiesces in such consultation, then the professional employment must be regarded as established; and the communication made by the client or advice given by the attorney under such circumstances is privileged.(fn4) (Emphasis added.)
In one recent case, the Colorado Supreme Court seemed to adopt the broader scope of the privilege, focusing on the need to ensure candid and open discussion between client and lawyer without fear of disclosure.(fn6) In a case decided just last year, however, the Court's approach was fuzzy:
As discussed below, there are a growing number of exceptions to and waivers of the privilege which serve to restrict its scope[The privilege] extends only to confidential matters communicated by or to the client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations.(fn7)
The Colorado courts have not specifically stated whether the attorney-client privilege should be broadly or narrowly construed. In analogous contexts the trend in Colorado is toward a narrowly construed privilege. The husband and wife privilege is strictly construed on the rationale that a privilege contravenes the fundamental principle that the public has a right to every man's evidence.(fn8) Liberal discovery is favored.(fn9) Similarly, the physician-patient privilege is narrowly construed:
Statements made by one to a doctor are not ipso facto privileged, but are privileged only if they meet all of the several requirements contained in C.R.S.'53, 153-1-7(4).(fn10)
The privilege is generally applicable in civil and criminal cases, to both natural persons and corporations,(fn11) and to communications with out-of-state attorneys.(fn12) It also can be asserted by both parties and non-parties to a lawsuit.(fn13)
The communication to and advice from the attorney are privileged only if they are "in the course of professional employment." Informal discussions which are not within the professional relationship are not privileged.(fn14) Generally, if a third party has hired the attorney, there is no attorney-client privilege.(fn15) For example, an abstract company attorney doing a closing does not have a professional relationship with the parties at the closing so as to create an attorney-client privilege.(fn16) Physicians(fn17) and accountants(fn18) employed by third parties are similarly not in a privileged situation. However, insurance companies are able to assert the attorney-client privilege for communications between the company's investigator and its insured, even though no attorney may be involved in the case at the time and no litigation is under way.(fn19)
There must be an expectation of confidentiality for the attorney-client privilege to exist. As noted, where the attorney has been hired by a third party, it is accepted that there is no anticipation of confidentiality and no privilege. However, the attorney-client privilege still exists if the communication is witnessed by third parties (see section on waiver below).
In several other instances, the court has concluded that there was no expectation of confidentiality due to the circumstances surrounding the communication. For example, documents created on the advice of counsel, but filed with general corporate records and accessible to various employees are not confidential. Reports or information which are to be communicated by the attorney to another person are not within the privilege, and documents which are to be recorded or filed with the court are not privileged.(fn20)
Colorado cases go both ways on whether or not corporate privileged records are confidential to a corporation's shareholders. In applying the accountant-client privilege, the court has recently found that reports made to shareholders waived any confidentiality,(fn21) contrary to the poorly reasoned holding in an earlier case where the court found that auditors' financial statements and annual reports prepared and published prior to litigation and distributed to the public and stockholders were not a waiver of privilege in any respect.(fn22)
Although the accepted rule in Colorado is that the assertion of the attorney-client privilege is a benefit personal to the client,(fn23) some Colorado cases suggest that the assertion may be made by other than the client. One case implies that the attorney or accountant witness himself has the right to claim a privilege.(fn24) The court has held in a physician-patient context that where the patient was not present in the court, was not a party and was not present or represented by counsel, the court must enforce the privilege unless a waiver is obtained or a party protects the privilege.(fn25)
Colorado cases recognize certain exceptions to the attorney-client privilege. The privilege does not apply in will contests, mental commitment proceedings, or where the incompetency, malpractice or unethical conduct of an attorney is asserted by the client.(fn26) There is no privilege where the communications relate to an ongoing or future criminal act or a continuing or future civil wrong or fraud.(fn27)
Moreover, there is no privilege for documents which...
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