Privileges — Rule 501

• Jurisdiction: Colorado

Privileges — Rule 501

SUMMARY OF RULE 501

• Unless a privilege applies as required by law, a person may not refuse to testify, refuse to disclose any matter, refuse to produce any object or writing, or prevent another from doing so.

LEGAL AUTHORITIES

Privileges

• Accountant Privilege. C.R.S. § 13-90-107(1)(f).

○ This privilege applies to certified public accountants and their employees in the course of employment. An accountant may raise the privilege pending the client's decision, but the privilege belongs to the client, not the accountant. Colorado State Bd. of Accountancy v. Zaveral Boosalis Raisch, 960 P.2d 102 (Colo. 1998).
○ Exploratory interviews of an accounting firm for divorce valuation issues by one spouse did not disqualify the accounting firm from serving as an expert for the other spouse because there was not an objectively reasonable belief in the existence of a confidential relationship with the expert's firm. In re Marriage of Page, 70 P.3d 579 (Colo. App. 2003).

• Attorney-Client Privilege. C.R.S. § 13-90-107(1)(b).

○ This privilege may only be waived by the client.
○ It applies to communications by the client and legal advice given to the client by the attorney.
○ The attorney has the right to assert a privilege with respect to his or her secretary, paralegal, legal assistant, stenographer, or clerk, unless the attorney can no longer claim the privilege. People v. Silvola, 547 P.2d 1283 (Colo. 1976), overruled in part on other grounds by People v. Macrander, 828 P.2d 234 (Colo. 1992).

○ Attorney-client privilege applies to expert witnesses hired or appointed to assist the client. B.B. v. People, 785 P.2d 132 (Colo. 1990) (privilege applies to a court-appointed expert for an indigent parent in a termination proceeding); People in Interest of E.H., 837 P.2d 284 (Colo. App. 1992) (privilege applies to a psychologist appointed for a parent in a termination proceeding, but the privilege may be waived if the parent calls the psychologist to testify). Note: In D.A.S. v. People, 863 P.2d 291 (Colo. 1993), the testimony and report of a court-appointed clinical psychologist for the indigent mother was admitted because it included information about parent-child interactions. The testimony was submitted by the guardian ad litem. The mother did not call the psychologist as a witness and asserted the attorney-client privilege. However, the report was disseminated to opposing counsel before trial. The privilege recognized in B.B. v. People, 785 P.2d 132 (Colo. 1990), is not absolute. If attorney work product is reviewed or considered (even if it is not relied on) by an expert in preparation for testimony, it is discoverable. Gall v. Jamison (In re Gall), 44 P.3d 233 (Colo. 2002).

In People in Interest of A.N-B., 2019 COA 46, the mother decided not to call her state-paid child psychologist expert. The report and testimony were admitted because most of the testimony concerned observations of the child and was not within the scope of the attorney-client privilege, and, most significantly, because the expert advised the mother both orally and in writing that the evaluation would not be considered confidential.

○ An attorney may be called to testify in a criminal case involving kidnapping charges against a former client regarding a written stipulation in a divorce case concerning custody and visitation rights (the stipulation consisted of an agreement to abide by a future custody evaluation, was known to third parties, and was not confidential). People v. Tippett, 733 P.2d 1183 (Colo. 1987).

○ If the attorney-client privilege is waived, it cannot be reasserted in a termination of parental rights hearing and it is also waived in later custody hearing. People in Interest of E. H., 837 P.2d 284 (Colo. App. 1992).
○ The privilege may be waived if the information is disclosed to a third person. A reasonable expectation of privacy is required for the privilege to apply. Lanari v. People, 827 P.2d 495 (Colo. 1992).
○ There is no blanket privilege. The privilege should be asserted on a question-by-question basis. Wesp v. Everson, 33 P.3d 191 (Colo. 2001). Circumstances must give rise to reasonable expectations that statements will be treated as confidential.
○ Statements made for the purpose of committing a crime are not privileged. Law Offices of Bernard D. Morley, P. C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982) (known as the crime-fraud exception). Any act or omission that violates criminal laws or aids the client in criminal or fraudulent conduct constitutes grounds for lawyer discipline. Colo. RPC 3.3(3); Colo. RPC 8.4(b) and (c); People v. Chappell, 927 P.2d 829 (Colo. 1996) (aiding client to violate custody order). Note: There is a separate concept of the ethical duty of nondisclosure. Colo. RPC 1.6.
○ The attorney-client privilege survives the death of the

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