Chapter 1 - § 1.3 • CONFIDENTIALITY
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§ 1.3.1—Ethical Obligation of Confidentiality
Colo. RPC 1.6 establishes a lawyer's ethical duty of confidentiality.
Under Colo. RPC 1.6(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)."
Colo. RPC 1.6(b) provides the following exception to the above Rule:
(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;
(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information is not protected by the attorney-client privilege and its revelation is not reasonably likely to otherwise materially prejudice the client; or
(8) to comply with other law or a court order.
See also cmts. [13] and [14].
Unless the client consents, a lawyer may not use information relating to the representation of a client to the disadvantage of the client.70 Further, a lawyer in possession of confidential information has particular obligations to former clients and may be prohibited from becoming adverse to them under Colo. RPC 1.9(b).
Colo. RPC 1.6 is based upon ABA Model Rule of Professional Conduct 1.6, which allows lawyers to disclose information to prevent not only a crime, but also to prevent a "fraud that is reasonably certain to result in substantial injury to the financial interests or property of another," or "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."71 Colo. RPC 1.6(b)(8) also makes it clear that a lawyer may disclose information as required to comply with other law or court order. This provision helps keep Colorado lawyers from being forced to violate the Colorado Rules of Professional Conduct when they disclose information as required by other regulations or court orders.
§ 1.3.2—Confidentiality Distinguished from the Attorney-Client Privilege
The ethical obligation of confidentiality must be distinguished from the Colorado attorney-client privilege.72 The ethical obligation stems from the Colorado Rules of Professional Conduct, while the attorney-client privilege is created by Colorado statute.73 The attorney-client privilege is applicable in judicial proceedings and other circumstances where testimony is compelled by law, while the ethical obligation applies in all situations.74 Also, because the ethical obligation covers all information relating to the representation of a client that is not generally known,75 it is broader in scope than the attorney-client privilege, which is limited to confidential communications between a lawyer and a client for the purpose of obtaining legal advice.76
Both the ethical obligation and the privilege, however, are subject to waiver by the client, either explicitly or implicitly. Colo. RPC 1.6(a) provides for both explicit client consent to disclosure after consultation, and for disclosures "impliedly authorized in order to carry out the representation." Moreover, statements protected by the privilege lose their privileged character if they are disclosed to third parties.77 As stated in the commentary to Colo. RPC 1.6, a lawyer must "make reasonable efforts to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision."78
§ 1.3.3—Issues of Confidentiality in Connection with Organizational Clients
As discussed in § 1.2, although an organization is an entity separate from its constituents, as an incorporeal entity, it can act only through those constituents. Thus, in order to protect the entity's right to confidentiality, communications between the organization's lawyer and its constituents are protected by Colo. RPC 1.6.79 But because the organization, and not the constituents, is the lawyer's client, the lawyer may not disclose the organization's information to such constituents except as authorized by Colo. RPC 1.6 (for example, disclosures authorized to carry out the representation).80
Under Colo. RPC 1.13(b), lawyers are instructed that if they know that a constituent has taken or intends to take some action or omission that violates a legal obligation to the organization or is a legal violation that may be imputed to the organization, and is likely to result in substantial injury to the organization, "the lawyer shall proceed as is reasonably necessary in the best interest of the organization." Measures suggested include referring the matter to a higher authority in the organization, even, if necessary, to the highest authority in the organization.81 "In determining how to proceed . . . , the lawyer shall give due consideration to the seriousness of the violation and its consequences, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters, and any other relevant considerations."82 If the organization's highest authority does not remedy the situation, the lawyer may resign in accordance with Colo. RPC 1.16.83
Colo. RPC 1.13 is modeled upon Model Rule 1.13. In August 2003, the ABA House of Delegates approved an amended Model Rule 1.13. Unlike the Colorado rule, Model Rule 1.13 now permits a lawyer to reveal information relating to the representation "whether or not Rule 1.6 permits such disclosure" if the organization's highest authority refuses to address an action or if a refusal to act is in violation of law, and the lawyer reasonably believes that the organization will suffer substantial injury as a result. Disclosure is not authorized, however, if the lawyer was retained to investigate an alleged violation or to defend the organization and/or its constituents against a claim arising out of an alleged violation.84 In addition, the Model Rule provides that a lawyer who reasonably believes that he or she has been discharged because of his or her actions in reporting violations shall proceed as reasonably necessary to assure that the...
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