Chapter 10 - § 10.2 • ELEMENTS OF THE ATTORNEY-CLIENT PRIVILEGE

• Jurisdiction: Colorado

§ 10.2 • ELEMENTS OF THE ATTORNEY-CLIENT PRIVILEGE

§ 10.2.1—General Principles

As the Colorado Supreme Court stated, "The [attorney-client] privilege extends to confidential communications by or to the client in the course of gaining counsel, advice, or directions with respect to the client's rights or obligations."

➤ Mountain States Tel. & Tel. Co. v. DiFede, 780 P.2d 533, 541 (Colo. 1989) (internal citations and quotation omitted). See also DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013) (citation omitted) (whether a communication warrants protection under the attorney-client privilege depends on whether it "concerns or contains confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction.").

The attorney-client privilege "embraces all written and oral communications between attorney and client as well as documents entrusted to the attorney by the client in the course of the business for which the attorney was employed."

➤ Blankenship v. Rowntree, 219 F.2d 597, 599-600 (10th Cir. 1955).

For testimonial purposes, Colorado has codified its attorney-client privilege. It provides, in pertinent part:

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:
. . . (b) An 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.

C.R.S. § 13-90-107(1)(b). See Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000).

Generally, the attorney-client privilege is personal with the client.

➤ Losavio v. Dist. Ct., 533 P.2d 32, 35 (Colo. 1975) (citing Mauro v. Tracy, 380 P.2d 570 (Colo. 1963)); Fearnley v. Fearnley, 98 P. 819 (Colo. 1908)).

Hence, the privilege may be waived only by the client.

➤ Hill v. Hill, 106 Colo. 492, 107 P.2d 597 (1940).

The law of privilege in federal courts is set forth in F.R.E. 501. It provides, in pertinent part, "'Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.'"

➤ See United States v. Bernard, 877 F.2d 1463, 1465 (10th Cir. 1989).

In cases where federal law applies, the elements of the attorney-client privilege are similar, albeit more detailed, than those under Colorado law. "Under federal common law, the attorney-client privilege arises (1) where legal advice of any kind is sought; (2) from a professional legal advisor in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal advisor; (8) unless the protection is waived."

➤ Roe, 281 F.R.D. at 635-36 (citation omitted). See also In re Grand Jury 90-1, 758 F. Supp. 1411, 1413 (D. Colo. 1991) (citation omitted) ("In order to benefit from the attorney-client privilege, the movant must satisfy five elements: (i) the asserted holder of the privilege is or sought to become a client, (ii) the person to whom the communication was made is an attorney, or his subordinate, (iii) the communication is made in connection with the person's role as a lawyer, (iv) the communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing legal advice, services or assistance, and not for the purpose of committing a crime or tort, and (v) no waiver has occurred.").

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 thereby promote broader public interests in the observance of law and administration of justice. The privilege serves the client's need for legal advice, but it also serves the attorney's need to receive complete information in order to give the proper advice. Under the common law, a critical component of the privilege "is whether the communication between the client and the attorney is made in confidence of the relationship and under circumstances from which it may reasonably be assumed that the communication will remain in confidence."

➤ In re Qwest Commc'ns Int'l Inc., Sec. Litig., 450 F.3d 1179, 1185 (10th Cir. 2006) (internal citations and quotations omitted).

The elements of attorney-client privilege set forth in Colorado and federal common law differ slightly. No matter how they are phrased, they boil down to four requirements:

1) A communication,
2) That is made by privileged persons or entities,
3) In confidence, and
4) For the purpose of seeking or obtaining legal assistance.

See generally I Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 65 (5th ed. ABA, Litigation Section 2007) (citation omitted).

§ 10.2.2—Element 1: Communications

The privilege applies to communications from attorney to client and from client to attorney.

➤ Wesp v. Everson, 33 P.3d 191, 196 (Colo. 2001).

The attorney-client privilege "embraces all written and oral communications between attorney and client as well as documents entrusted to the attorney by the client in the course of the business for which the attorney was employed."

➤ Blankenship v. Rowntree, 219 F.2d 597, 599-600 (10th Cir. 1955), aff'd and modified, 238 F.2d 500 (10th Cir. 1956).

"Materials, transmitted between nonlawyers, that reflect matters about which the client intends to seek legal advice are comparable to notes a client would make to prepare for a meeting with her lawyer — notes which could serve as an agenda or set of reminders about things to ask or tell counsel. It would undermine the purpose of the attorney-client privilege not to extend protection to such notes. Therefore, internal communications that reflect matters about which the client intends to seek legal advice are protected."

➤ Pownell v. Credo Petroleum Corp., Civ. No. 09-cv-01540-WYD-KLM., 2011 U.S. Dist. LEXIS 35869, at *11 (D. Colo. Mar. 17, 2011) (quotations and citation omitted). See also Kay Labs., Inc. v. Dist. Ct., 653 P.2d 721, 723 n. 3 (Colo. 1982) (privilege protects documents created by an agent acting for the attorney).

Disclosure of an attorney's notes and memoranda of witnesses' oral statements is particularly disfavored because it tends to reveal the attorney's mental processes.

➤ Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1049 (Colo. 1986) (citing Upjohn Co. v. United States, 449 U.S. 383, 399 (1981)).

Just because a communication is based on public information does not render the privilege inapplicable to it.

➤ DCP Midstream, LP v. Anadarko Petroleum Corp., 303 P.3d 1187, 1199 (Colo. 2013) ("What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information.").

For the privilege to apply, the attorney-client relationship must exist at the time that the communications are created.

➤ See Kay Labs., 653 P.2d at 723 n. 3.

Unless a pre-existing document was itself privileged before it was communicated to an attorney, it does not become privileged merely because of the transfer.

➤ See Fisher v. United States, 425 U.S. 391, 403-04 (1976). See also Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 629-30 (D. Nev. 2013) ("merely copying or 'cc-ing' legal counsel, in and of itself, is insufficient to trigger the [attorney-client] privilege").

The attorney-client privilege embraces non-verbal communicative acts that are intended to convey information.

➤ See 8 John H. Wigmore, Evidence § 2306 (Supp. 2019); 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5484 (1st ed. West 2019).

But the privilege will not apply in the absence of an intent to communicate. For example, physical characteristics, demeanor, complexion, sobriety, or dress are not communicative and would not be protected.

➤ See Kenneth S. Brount et

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