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By: Eric Musselman and Sarah Oszczakiewicz

The attorney-client privilege is an important protection for anyone who may be seeking or is currently represented by an attorney. As a client, understanding the meaning, purpose, and scope of the privilege can assist in helping to receive its full protection. This privilege has been a hot topic in our recent national political discourse, and it is a vital concept for understanding the attorney-client relationship.

Though the attorney-client privilege is critical to all such relationships, it is imperative to understand the privilege and how it works in the context of domestic relations cases (divorce and family law). During a divorce or other legal proceedings related to family issues, it is common for the involved individuals to be tempted to discuss the matter with their family and friends as the issues intimately affect a person’s day-to-day life and can be highly emotional. As such, it is helpful for any person currently involved in or planning to engage in domestic relations legal proceedings to understand their right to confidentiality and how best to protect his or her sensitive information.

The attorney-client privilege is a special legal right. It is the client’s right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney. BLACK’S LAW DICTIONARY 1215 (7th ed. 1999). Where the privilege applies, it extends to communication from a client to his or her attorney, and likewise, from an attorney to the client. Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2003). In Colorado, the attorney-client privilege is well safe-guarded and the law includes a “presumption in favor of the attorney-client privilege.” People v. Madera, 112 P.3d 688, 690 (Colo. 2005). All lawyers are required to uphold the attorney-client privilege and are bound to do so by statute, pursuant to  C.R.S. § 13-90-107(1)(b), the Colorado Rules of Professional Conduct, pursuant to Colo. R.P.C. 1.6, and under the authority of various legal precedent decided by Colorado courts.

The purpose of the attorney-client privilege is to encourage and preserve confidence in the attorney-client relationship. C.R.S. § 13-90-107(1). The policy underlying the privilege is intended to promote the orderly administration of justice by insuring candid and open discussion between client and attorney without fear of disclosure. People in Interest of O.J.S., 844 P.2d 1230, 1231 (Colo. App. 1992), aff’d, 863 P.2d 291 (Colo. 1993). The attorney-client privilege is important in facilitating the full development of facts that make it essential for an attorney to properly assist and represent a client. Gordon, 9 P.3d at 1123 (internal quotation and citation omitted).

The attorney-client privilege attaches only to particular communications and circumstances. Not every piece of information that a client shares with his or her attorney will be covered by the privilege. The attorney-client privilege applies to confidential matters communicated by or to the client in the course of obtaining counsel, advice, or direction with respect to the client’s rights or obligations. Madera, 112 P.3d at 690 (internal quotation and citation omitted). A client must have a reasonable expectation that a statement will be treated as confidential in order for the privilege to attach, and the communication must be related to the purpose of the attorney’s engagement or representation of the client. Gordon, 9 P.3d at 1123 (internal quotation and citation omitted). The privilege will not attach to or protect any underlying and otherwise unprivileged facts that are incorporated into a client’s communication to his attorney. Id. In other words, any information that a client shares with his or her attorney that is unrelated to the purpose of the attorney’s representation may not be protected by the attorney-client privilege.

Despite the stringent protection of the attorney-client privilege under Colorado law, it is not absolute. See Madera, 112 P.3d at 690. A few of the most common exceptions to privilege include the Crime-Fraud Exception, the Testamentary Exception, and Waiver. The Crime-Fraud Exception means that communications between attorney and client are not privileged if they are made for the purpose of aiding the commission of a future or present continuing crime, which wrongdoing extends to civil fraud as well. Caldwell v. District Court, 644 P.2d 26, 31 (Colo. 1982).

The Testamentary Exception is an exception to the privilege that seeks to further a client’s testamentary intent. Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001). Ordinarily, the attorney-client privilege will continue to protect communications where a client has died. Id. But, under this exception, “the attorney who drafted the will of a deceased client may disclose attorney-client communications concerning the will and transactions leading to its execution in a lawsuit between the testator’s heirs, devisees, or other parties who claim by succession from the testator.” Id. at 200 (internal citations omitted).

Waiver is the final exception that we address here in this article, but, as it has significant implications regarding the information that a client shares with third-parties other than his or her attorney, we address this exception in greater detail. The attorney-client privilege is personal to the client and can only be waived by the client. Madera, 112 P.3d at 690 (internal quotation and citation omitted). Waiver must be demonstrated by evidence that the client, “by words or conduct, has expressly or impliedly forsaken his or her claim of confidentiality with respect to the information in question and, thus, has consented to its disclosure.” People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006) (internal quotation and citation omitted). Waiver may occur when a client asserts a claim or defense that focuses on advice given by the attorney, thereby putting the communications between them at issue in a case or matter. See Wesp, 33 P.3d at 198. Since confidentiality is one of the elements that must be shown in order for the attorney-client privilege to attach, a communication “made in the presence of a third party will not ordinarily receive the protection of the attorney-client privilege.” Id. Similarly, “if a communication to which the attorney-client privilege has previously attached is subsequently and voluntarily disclosed to a third party, then the protection afforded by the privilege is impliedly waived.” Id. Stated otherwise, if a client shares confidential information with his or her attorney, causing the privilege to attach, and then shares the same information with a third-party, that particular communication likely is no longer subject to protection under the attorney-client privilege.
Ultimately, while it is incumbent upon attorneys to protect a client’s right to the attorney-client privilege, understanding the basic principles of the privilege will benefit potential or existing clients in receiving its full protection.

For further information about this article or any matters involving domestic relations, please contact the authors at Garfield & Hecht, P.C. at 970-925-1936, or reach them directly at: Eric Musselman ()
Sarah Oszczakiewicz ()