Trial Counsel’s Continued Duty of Confidentiality in Postconviction Proceedings, 1219 COBJ, Vol. 48, No. 11 Pg. 32
| Author | BY ANN M. ROAN |
| Position | Vol. 48, 11 [Page 32] |
TITLE CRIMINAL LAW
BY ANN M. ROAN
This article examines trial counsel's duties surrounding client confidentiality in postconviction proceedings.
Whatever You Say, Say Nothing.”1 Following conviction, clients have the right to pursue a petition for postconviction relief under Crim. P. 35(c). Such petitions most commonly allege that trial counsel provided ineffective assistance. This article examines trial counsel’s duties to the client in the face of such allegations, including application of the attorney-client privilege, the duty of confidentiality, and the work product privilege. It also examines the intersection between privilege, confidentiality, and the lawyer’s ethical duty to cooperate with postconviction counsel.
The Attorney-Client Privilege and the Duty of Confidentiality
Lawyers faced with ineffective assistance of counsel claims must nevertheless maintain the attorney-client privilege, subject to narrow exceptions, and the confidentiality of client communications. Attorneys must also adhere to work product privilege protections.
The Attorney-Client Privilege
The attorney-client privilege is "the oldest of the privileges for confidential communications known to the common law. Its purpose is to encourage full and frank communication between attorneys and their clients, and there by promote broader public interests in the observance of law and administration of justice."2 The law esteems this privilege so highly that it survives the client's death.3
In Colorado, the attorney-client privilege is codified at CRS § 13-90-107(1)(b), which provides that
[a]n 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; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
The attorney- client privilege is "rooted in the principle that candid and open discussion by the client to the attorney without fear of disclosure will promote the orderly administration of justice."4 The privilege facilitates the full development of facts necessary to properly represent a client and encourages the general public to seek legal assistance.5 While the privilege sometimes conflicts with the judicial system's truth-seeking goals, its overall social benefits outweigh any harm that might result from the privilege's application in a specific case.6
The
privilege's scope is limited; it covers only those
communications between a lawyer and her client related to
counsel, advice, or direction about the client's rights
and legal obligations7 made in circumstances that demonstrate
a reasonable expectation that they will be
private.8 Moreover, the privilege does not
permit the client to refuse to disclose otherwise
unprivileged information communicated to the lawyer
"merely because he incorporated a statement of such fact
into his communication with his attorney."[9] If a third
party is present during the discussion between the client and
lawyer, the attorney-client privilege does not ordinarily
apply.
The attorney-client privilege may be impliedly or explicitly waived, but because the privilege is personal to the client, only the client may waive it.13 Even when the client does not explicitly waive the privilege, Colorado courts recognize that an implied waiver is created when the client (1) discloses information protected by the privilege to a third party,14 or (2) puts privileged communications at issue by asserting a claim or defense that depends on privileged information.15
The Duty of Confidentiality
As a
general matter, the duty of confidentiality commands that
"[a] lawyer shall not reveal information relating to the
representation of the client[.]"16 While the CRS
§ 13-90-107(1) (b) protections cover only communications
between the lawyer and client, Colo. RPC 1.6(a) is broader
and covers all information relating to the
representation, regardless of the lawyer's source of
knowledge.
The
presumptive sanction for violating Colo. RPC 1.6(a) is
suspension from the practice of law.19 This drastic
presumptive sanction reflects the principle that a
lawyer's highest ethical obligations are those owed to
clients, and the duty of loyalty is chief among those
obligations.
Further, the duty of confidentiality prohibits a lawyer from revealing information relating to the representation, even if that information would be evident from a review of public records.22
The Work Product Privilege
The
work product privilege protects materials that an adverse
party's counsel prepares in performing his legal
duties.23 This protection is grounded in
"the historical and necessary way in which lawyers act
within the framework of our system of jurisprudence to
promote justice and to protect their clients'
interests."
The privilege in criminal cases is described in Crim. P. 16(I)(e)(1), which provides:
Disclosure shall not be required of legal research or records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting attorney or members of his legal staff.
This
same protection extends to defense counsel's work
product.26 The protection is consistent with
the U.S. Supreme Court's declaration that "[n]ot
even the most liberal of discovery theories can justify
unwarranted inquiries into the files and mental impressions
of an attorney."27 In Colorado, the work product
doctrine is most frequently asserted during civil litigation
as a bar to discovery, "but it applies with equal,
if not greater, force in criminal
prosecutions."
Factual work product "encompasses the factual observations memorialized by an attorney while conducting an investigation and generally receives a lower level of protection."...
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