One topic that has been talked about a lot in the media lately is the attorney-client privilege. This is likely a result of the large-scale legal disputes currently making headlines and the large number of lawyers involved in these disputes.
But what is the attorney-client privilege? It allows people who need legal advice to seek that advice without fear of jeopardizing their position by consulting a lawyer. It is a legal theory based on public policy considerations that aims to make it possible to seek. Colorado law governing the attorney-client privilege explains this principle as follows: “A lawyer shall not be subject to investigation, without the client’s consent, of communications made to him by the client in the course of his professional work, or of advice given in response.”
In other words, a lawyer engaged in providing legal advice cannot be forced to disclose communications with a client that occurred in the course of representing the client.
As this statement of the principle indicates, the client, not the lawyer, owns the attorney-client privilege, and only the client can waive that privilege. However, as you might expect (we’re talking about law here), there are moving parts to this doctrine that can cause controversy.
One important exception to the attorney-client privilege is that communications between a client and attorney where the client is seeking advice in furtherance of a crime or fraud are not privileged. is. Therefore, customers cannot seek the advice of a lawyer on the best way to rob a bank.
Another exception applies when a client dies and a dispute arises over the distribution of the client’s estate. There, the attorney can testify about communications with the client regarding the client’s intent to dispose of assets. The idea behind this exception is that it can help carry out a deceased client’s wishes.
A common issue arises when a client brings a third party to a meeting with the lawyer or tells a third party what the lawyer said during the meeting. This raises the argument that the client has waived the attorney-client privilege, in which case the attorney may be forced to disclose communications with the client.
Another interesting aspect of the attorney-client privilege arises when a lawyer desires disclosure of a client’s interactions with the lawyer for his or her own benefit. As courts have consistently stated, the attorney-client privilege is intended to protect the client, not the attorney. Therefore, an attorney seeking disclosure of communications between a client and attorney cannot compel or provide such disclosure unless the client waives privilege and consents to the disclosure.
Similarly, as a matter of legal ethics, lawyers cannot disclose confidential information from their clients and must protect it. However, in order to promote fair play, if a client is suing the attorney for medical malpractice or other breach of duty, the attorney will disclose communications with the client in defense of claims asserted by the client against the attorney. can.
In addition to attorney-client privilege, the law recognizes other evidentiary privileges. The list here includes communications between spouses and between partners in civil unions. Communication with clergy while performing official duties. Communication between doctor and patient. Communication between mental health professionals and patients. and communication with intermediaries.
The important lesson to learn here is that you should almost always leave your family and friends at home when meeting with your attorney. And be careful what you say on social media. Failure to do so may result in a waiver of attorney-client privilege.
Jim Flynn is a business columnist. He is with the Colorado Springs firm of Flynn & Wright. He can be reached at moneylaw@jtflynn.com.
