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Colorado Criminal Defense: Basics of the Attorney-Client Privilege

The attorney-client privilege is intended to protect the client in the attorney-client relationship. Its purpose is to encourage clients to be open and honest with their lawyers.

Where the Protection May be Found

In Colorado, there is a specific statute setting forth the requirement that an attorney not be examined without the consent of his client about any attorney-client communications.

The attorney-client privilege may implicate a criminal defendant’s Sixth Amendment Right to Counsel found in the United States Constitution. The privilege is also interrelated with a criminal defendant’s Fifth Amendment Right against Self-Incrimination, also found in the United States Constitution.

Why the Attorney-Client Privilege is Important

Candid discussion is believed to promote the orderly administration of justice.

When a client feels free to speak candidly with his or her lawyer, the lawyer is less likely to encounter surprises in the course of representing the client. The lawyer is also able to develop the facts necessary to effectively provide a legal defense for the client.

A client who is able to speak to his or her lawyer without fear of others learning of the conversation will receive better legal representation than one who is not.

Additionally, the attorney-client privilege encourages people to seek early legal assistance without fear of disclosure.

What the Attorney-Client Privilege Protects

The attorney-client privilege applies to all 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.

A communication between a lawyer and a client (or prospective client) is protected regardless of whether the client is communicating information to the lawyer or vice versa.

On the other hand, matters that are not legal or are not related to legal advice, direction, or representation are not confidential and will not be given protection even though they may be communicated to an attorney.

Additionally, a client cannot refuse to disclose information he or she would otherwise be required to disclose, simply because he or she also communicated it to an attorney. For example, if a defendant in a criminal case chooses to testify at trial and the prosecutor asks the defendant where he was last Saturday night at 8:00 p.m., the defendant cannot refuse to answer the question simply because he has communicated this information to his lawyer.

Exceptions to the Attorney-Client Protections

There are, however, exceptions to the attorney-client privilege. The rule is not absolute. Under certain circumstances other interests may prevail over the attorney-client privilege.

It is also important to note that a client can waive a limited amount of this protection when he or she makes claims about the adequacy of his or her attorney’s representation.

The presence of others during the attorney-client communications generally also waives the privilege.

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