Preservation of the Attorney-client Privilege: Using Agents and Intermediaries to Obtain Legal Advice

• Publication year: 2001
• Pages: 51
• Citation: Vol. 30 No. 5 Pg. 51

30 Colo.Law. 51 Colorado Lawyer 2001.

2001, May, Pg. 51. Preservation of the Attorney-Client Privilege: Using Agents and Intermediaries to Obtain Legal Advice

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51

Vol. 30, No. 5, Pg. 51

The Colorado Lawyer
May 2001
Vol. 30, No. 5 [Page 51]

Specialty Law Columns
The Civil Litigator
Preservation of the Attorney-Client Privilege: Using Agents and Intermediaries to Obtain Legal Advice
by Michael H. Berger

The client often brings along family members, trusted friends, and business advisors for meetings with a lawyer The client may not know the lawyer and often has no experience dealing with lawyers or the legal system. The client may be a child or may have some disability that makes meaningful communication with the lawyer difficult or even impossible. In the client's mind, bringing along a trusted person to aid communication with the lawyer and help make difficult choices is simple common sense. However, such common sense may collide with the doctrine of waiver of the attorney-client privilege. This common practice raises difficult questions for the lawyer, who is charged with advising the client regarding preservation of the attorney-client privilege, as well as preserving the client's confidences.1

Generally, the attorney-client privilege is waived when the client communicates the substance of the lawyer's legal advice to a third party or where a third party is permitted to participate in the privileged communications between the client and the lawyer.2 Thus, under the traditional test of waiver, permitting a third party to participate in the confidential communications between lawyer and client constitutes a waiver of the privilege

Ironically, a corporation or other legal entity that seeks legal advice does not operate under the same constraints. A corporation may appoint numerous employees in any variety of disciplines to communicate and consult with the corporation's lawyer without risk of waiver of the privilege.3 However, an individual seeking legal advice may not have the equivalent ability to have a spouse or other trusted person participate in his or her legal consultations without risking waiver of the attorney-client privilege.4

The purpose of this article is to examine waiver of the attorney-client privilege and determine under what circumstances an individual may involve non-attorney advisors in the attorney-client relationship without waiving the privilege. Because the Colorado Supreme Court has adopted the agency rule, at least in part, with respect to the attorney-client privilege, that rule is the focus of this article

The Attorney-Client Privilege

The attorney-client privilege originated in the common law and has been codified in most jurisdictions. The purpose of the attorney-client privilege is to "secure the orderly administration of justice by insuring candid and open discussion by the client to the attorney without fear of disclosure."5 The Colorado statute that codifies the attorney-client privilege provides that client consent is necessary before an attorney can reveal any communications made by the client, or the attorney's own advice, given in the course of professional employment.6 The statute also provides that an attorney's secretary, paralegal, legal assistant, stenographer, or clerk may not reveal such communications without the consent of the employer.

The Law of Agency

Courts and commentators are not in agreement on the analytical framework or the results of the analysis concerning the situation in which a person other than the client participates in the communications between the client and the lawyer. Some courts and commentators use the law of agency to analyze this issue. Others speak in terms of facilitators who are essential or necessary for the client to obtain legal advice. Other authorities do not specify the rationale for their holdings. The Colorado Supreme Court, at least in part, has applied the law of agency to issues involving the attorney-client privilege.

Unlike the attorney-client privilege statute in certain other jurisdictions, the Colorado statute does not expressly expand the privilege to agents of the client or agents of the lawyer, excluding the lawyer's secretaries, paralegals, legal assistants, stenographers, and clerks.7 Nevertheless, the Colorado Supreme Court has held that communications made to an agent of the lawyer are protected by the privilege, irrespective of whether such an agent is described in the attorney-client privilege statute.8

Agents of the Lawyer

In Miller v. District Court,9 a psychiatrist was retained by defense counsel to assist in the preparation of the defense to criminal charges. The prosecution learned about the examination by the psychiatrist, and, after the defendant entered a plea of not guilty by reason of impaired mental condition, the prosecution subpoenaed the psychiatrist as a witness. The Colorado Supreme Court ordered the trial court to quash the contempt citation issued when the psychiatrist refused to testify regarding his communications with the defendant.

In an expansive reading of the Colorado attorney-client privilege statute, the Court specifically adopted the agency rule of the attorney-client privilege, at least with respect to agents of the lawyer. Thus, "the privilege may be applied to communications between the client and agents of his attorney."10 The Court further explained its holding by stating:

The agency rule recognizes that the complexities of practice prevent attorneys from effectively handling clients' affairs without the help of others. The assistance of these agents being indispensable, . . . [t]he privilege must include all persons who act as the attorney's agents.11

Therefore, it is settled in Colorado that communications between a client and an agent of the lawyer, whether or not the agent falls within the categories set forth in the statute, remain privileged.12

Agents of the Client

What about agents of the client, as opposed to agents of the lawyer? The Colorado attorney-client statute makes no mention of agents of the client.13 Although no reported Colorado case holds that communications between agents of the client and the lawyer are protected by the privilege, the Miller Court did address the issue, in dictum.14 The majority of the Court quoted, with approval, the following language of Chief Justice Traynor of the California Supreme Court in City of San Francisco v. Superior Court:15

It is no less the client's communication to the attorney when it is given by the client to an agent for transmission to the...