Articles Professional Conduct and Legal Ethics
| Publication year | 2009 |
| Pages | 35 |
2009, January, Pg. 35. Articles Professional Conduct and Legal Ethics
January 2009
Vol. 38, No. 1 [Page 35]
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee. Articles published here do not necessarily reflect the legal interpretation of the Committee.
Coordinating Editor
Stephen G. Masciocchi, Denver, of Holland & Hart LLP-(303) 295-8000, smasciocchi@hollandhart.com
About the Authors
Michael H. Berger is a member of the law firm of Jacobs Chase Frick Kleinkopf & Kelley, LLC-mberger@jacobschase.com. Katie A. Reilly is an associate at Jacobs Chase Frick Kleinkopf & Kelley, LLC-kreilly@jacobschase.com. The authors express their appreciation for the legal research and analysis of attorney Katayoun Donnelly, formerly of Jacobs Chase.
A lawyer's duty of confidentiality is enforced through several separate but related rules and laws-the rules of professional conduct, the statutory attorney-client privilege, and the court-made work product privilege. This article suggests a methodology for resolving problems that arise when a lawyer is required by legal process to produce information that is protected by one or more of these rules and laws.
Confidentiality is a fundamental tenet of the attorney-client relationship. Without it, the relationship cannot function properly.(fn1) A lawyer's duty of confidentiality is enforced through several rules and laws: the rules of professional conduct, the statutory attorney-client privilege, and the court-made work product privilege. It is essential that lawyers understand the interplay of these rules and privileges to meet their ethical and legal obligations. This article discusses the actions required of, and the alternatives available to, a lawyer who is compelled by legal process to produce information (either documents or testimony) that relate to the representation of a client.
Confidentiality and the Rules of Legal Ethics
Rule 1.6 of the Colorado Rules of Professional Conduct (Colo. RPC or Rules)(fn2) prohibits a lawyer from disclosing, without the client's informed consent (or an applicable exception to the Rule), any information relating to the representation of the client. (See the accompanying sidebar for the full text of Rule 1.6.) The scope of Rule 1.6 is vast; it is not limited to secrets or confidential information. It also does not exclude information that is generally known or publicly available. In addition, Rule 1.6's prohibition extends to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person-for example, a thinly veiled hypothetical or generalized discussion that provides enough clues to the listener to figure out the identity of the client or the situation involved.(fn3)
Although the coverage of Rule 1.6 is very broad, there are circumstances where it gives way to court orders or other laws. For example, the Rule does not prohibit disclosure of protected information in judicial and other proceedings where the lawyer is placed under legal compulsion to produce documents or to testify. In the judicial proceedings setting, the attorney-client privilege and the work product privilege (as well as any other applicable privileges) apply. However, as discussed below, the scope of those privileges is far more limited than the duty of confidentiality imposed by the rules of legal ethics. Comment [3] to Rule 1.6 describes the relationship between the Rule and the privileges as follows:
The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. . . .(fn4)
Colorado Rule of Professional Conduct 1.6
Colo. RPC 1.6 provides:
(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; or
(7) to comply with other law or a court order.
Confidentiality and the Attorney-Client Privilege
In Colorado, the attorney-client privilege is created by statute.(fn5) The privilege "applies to confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client's rights or obligations."(fn6) The privilege applies: (1) where legal advice is sought (2) from a professional legal advisor in his or her capacity as such (3) made in confidence (4) by disclosure by the client or the lawyer.(fn7)
Although the statute does not expressly limit the attorney-client privilege to communications intended to be confidential, courts uniformly have interpreted the statutory privilege as applying only "to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential."(fn8) It also is settled that the privilege does not protect the disclosure of facts. Although the specific communication by the client to the lawyer conveying the facts of a matter is covered by the privilege, the underlying facts are not.(fn9) Therefore, ordinarily the client may be compelled to testify regarding those facts.(fn10)
Whether a lawyer can be compelled to testify regarding the facts...
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