Chapter 10 - § 10.2 • ATTORNEY-CLIENT PRIVILEGE

• Jurisdiction: Colorado

§ 10.2 • ATTORNEY-CLIENT PRIVILEGE

§ 10.2.1—Introduction

Confidential written and oral communications between an attorney or the attorney's employees and a client made in the course of providing/obtaining counsel, advice, or direction with respect to the client's rights or obligations are protected from disclosure by the attorney-client privilege. See C.R.S. § 13-90-107(1)(b); DCP Midstream, LLP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1198-99 (Colo. 2013); Losavio v. Dist. Ct., 533 P.2d 32, 35 (Colo. 1975). Fundamentally, the purpose underlying the attorney-client privilege is to encourage clients to confide in their attorneys. In re Estate of Rabin, 474 P.3d 1211, 1220 (Colo. 2020); Wesp v. Everson, 33 P.3d 161, 196 (Colo. 2001). The statutory privilege has thus been construed to apply "only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential." Wesp, 33 P.3d at 197. The attorney-client privilege may extend to both individual and entity clients. Alliance Constr. Solutions, Inc. v. Dep't of Corr., 54 P.3d 861, 865 (Colo. 2002); see also Upjohn Co. v. United States, 449 U.S. 383 (1981). Unlike the individual client, a corporation cannot speak directly with its lawyers. Instead, the corporation must do so through its agents — meaning, a corporation may only assert or waive the attorney-client privilege through individuals empowered to act on its behalf. Affiniti Colo., LLC v. Kissinger & Fellman, P.C., 461 P.3d 606, 614 (Colo. App. 2019).

Ordinarily, the attorney-client privilege survives the client's death. Wesp, 33 P.3d at 200. This "posthumous" privilege, however, does not presumptively apply to dissolved corporations where no one may remain with authority to act on behalf of the entity in order to invoke or waive the privilege. See id. at 616-17. Additionally, Colorado has long recognized the limited "testamentary exception," which permits an attorney who drafted a decedent's will to testify in probate proceedings regarding the will and the transactions leading to its execution. Denver Nat'l Bank v. McLagen, 298 P.2d 386, 491 (Colo. 1956). The attorney-client privilege also survives after the attorney-client relationship has ceased. See Dunlap v. People, 173 P.3d 1054, 1070 (Colo. 2007).

The privilege precludes the discovery of and examination on such attorney-client communications without the consent of the client. See C.R.S. § 13-90-107(1)(b). The burden of establishing that a particular communication is privileged rests on the party asserting the privilege. Wesp, 33 P.3d at 197. There is no blanket privilege for all attorney-client communications. Rather, the party asserting the privilege bears the burden of establishing that a particular communication is privileged, and must claim the privilege with respect to each specific communication. DCP Midstream, LLP, 303 P.3d at 1199 (citing Wesp, 33 P.3d at 197).

Because confidentiality is one of the foundation requirements that must be established for the attorney-client privilege to attach, an otherwise...