Understanding the Colorado Attorney Client Privilege and Attorney Client Confidentiality

The attorney-client privilege is “one of the oldest recognized privileges” and protects confidential communications between a client and his attorney.

The existence of the privilege ensures “full and frank communication between attorneys and their clients” and is essential to the maintenance of the confidentiality of attorney-client communications needed to promote the effective rendering of legal services.

To demonstrate that the attorney-client privilege shields a document from disclosure, the party asserting the privilege must show;

1. that there was a communication between an attorney and his or her client
2. that the communication was made in confidence,
3. that it was made to an attorney by a client, and
4. that it was made for the purpose of seeking or obtaining legal advice.

The privilege also protects communications from the attorney to the client or the client to the attorney that would reveal directly or indirectly the substance of the client’s communications to the attorney in seeking legal advice.

One court has explained that the attorney-client privilege applies only if:

1. the asserted holder of the privilege is or sought to become a client;
2. the person to whom the communication was made:
   1. is a member of the bar of a court or his subordinate and
   2. in connection with this communication is acting as a lawyer;
3. the communication relates to a fact of which the attorney was informed:
   1. by his client
   2. without the presence of strangers
   3. for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not
   4. for the purpose of committing a crime or tort; and
4. the privilege has been (a) claimed and (b) not waived by the client.

Courts have explained that “communications from attorney to client are shielded if they rest on confidential information obtained from the client.” Thus, “privilege cloaks a communication from attorney to client based, in part at least, upon a confidential communication to the lawyer from the client.”

It also follows that “when an attorney conveys to his client facts acquired from other persons or sources, those facts are not privileged.”

The attorney-client communication is construed narrowly, to protect from disclosure only those communications from the client to the attorney which were intended to remain confidential and made for the purpose of seeking legal advice.

Because the purpose of the privilege is to promote a “free and open discussion between the client and the attorney in seeking or giving legal advice, the privilege should protect only the client’s communications to the attorney (and so much of the attorney’s communications to the client that might tend to reveal a client communication)” – and, of course, the legal advice itself – “and not facts or other information contained in the communication.”

The burden is on the one claiming privilege to present sufficient facts to establish with reasonable certainty that the privilege applies. The issue of what precisely constitutes confidential client communications protected by the attorney-client privilege becomes somewhat more complicated in the context of legal representation for the purpose of filing a bankruptcy petition. In accordance with the very elements of the attorney-client privilege set forth above, information and communications imparted from a client to his attorney for the purpose of their disclosure in a bankruptcy filing are not privileged because information intended to be disclosed in such a filing by definition is not information provided to the attorney in confidence.

When there is no intent that the communication remain confidential, the privilege does not attach. See id. (“When information is disclosed for the purpose of assembly into a bankruptcy petition and supporting schedules, there is no intent for the information to be held in confidence because the information is to be disclosed on documents publicly filed with the bankruptcy court.”).

That said, any legal advice sought or obtained on the basis of confidential communications between a client and his attorney, even in the context of the preparation of a bankruptcy petition, is protected by the attorney-client privilege.

There is no protection for statements or information provided by a client to an attorney, even though in confidence, if the purpose of the communication or consultation is to further a crime or fraud. As one court has explained There are slight... differences in the formulation of the test for the crime-fraud exception as applied to the two privileges in question, attorney-client and work-product. To establish the exception to the attorney-client privilege, the court must consider

whether the client “made or received the otherwise privileged communication with the intent to further an unlawful or fraudulent act,” and establish that the client actually “carried out the crime or fraud.”

To establish the exception to the work-product privilege, courts ask a slightly different question, focusing on the client’s general purpose in consulting the lawyer rather than on his intent regarding the particular communication: “Did the client consult the lawyer or use the material for the purpose of committing a crime or fraud?”

While the burden is on the one asserting a privilege to show that a communication is privileged, the burden shifts under the crime-fraud exception to the one seeking to pierce or overcome the privilege. More specifically, the crime-fraud exception is triggered when the party seeking to overcome or pierce a privilege provides prima facie (a minimal case) evidence that the client was seeking the attorney’s advice or consulting with the attorney in furtherance of a plan of wrongdoing.