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Colorado Criminal Law: Understanding the Attorney Client Relationship – A Primer

This area of law is complex but extremely important as the attorney client relationship is one of the foundations of our system of justice. Permitting complete confidence in one’s attorney, the attorney – client confidentiality is considered sacred to the law.

A lawyer’s ethical obligations not to reveal information relating to the representation of a client are governed in this jurisdiction by the Colorado Rules of Professional Conduct,

Colo. R.P.C. 1.6,  – Here is the rule about confidentiality.

Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to reveal the client’s intention to commit a crime and the information necessary to prevent the crime;

(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(5) to secure legal advice about the lawyer’s compliance with these Rules, other law or a court order;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(7) to comply with other law or a court order. 

However – the law does not end there.  The rules of ethics binding lawyers expressly contemplate that external principles of substantive law which specifically determine, in the first instance, whether an attorney-client relationship exists.  Those principles – that is – when communications between a lawyer and his/her client are privileged – is governed by a different law: § 13-90-107 1 (b)

The Evidenciary Privilege – My Lawyer Can Not Testify Against Me… Why?

This is called an evidentiary privilege and protects communications between attorney and client relating to legal advice is codified in this jurisdiction by statute rather than court rule, see § 13-90-107(1)(b), C.R.S. (2010);

Here is that Law:

Title 13. COURTS AND COURT PROCEDURE

§ 13-90-107. Who May Not Testify Without Consent

(1) There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases:

(b) An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney’s secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.

But even that law does not makes no attempt to define the attorney-client relationship itself. Instead, the Colorado Courts of Appeal have held generally that a client is a person who employs or retains an attorney for advice or assistance on a matter relating to legal business, People v. Morley, 725 P.2d 510, 517 (Colo. 1986),

….and an attorney-client relationship is established when it is shown that the client seeks and receives the advice of the lawyer on the legal consequences of the client’s past or contemplated actions.

Therefore What Exactly Is the Attorney-client Relationship?  When Is it Created?

Generally, the attorney-client relationship is established when it is shown that a client seeks and receives the advice of a lawyer on the legal consequences of the client’s past or contemplated actions.  People v. Bennett, 810 P.2d 661 (Colo. 1991).

For over 100 years, the Colorado Supreme Court has held that “the attorney-client relationship arises when a defendant consults an attorney about his case.


The [attorney-client] privilege is established by the act of a client seeking professional advice from a lawyer.

If a person in respect to his business affairs, or troubles of any kind, consults with an attorney in his professional capacity, with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established.

The attorney-client relationship “may be inferred from the conduct of the parties.” People v. Bennett, 810 P.2d 661, 664 (Colo. 1991).

The proper test is a subjective one, and an important factor is whether the client believes that the relationship existed.” People v. Bennett, 810 P.2d 661, 664 (Colo. 1991) (emphasis supplied).

The historic purpose of the attorney-client privilege?

…the law has considered it the wisest policy to encourage and sanction this

confidence by requiring that on such facts communicated in confidence, the mouth of

the attorney shall be forever sealed.

Defense counsel should not, in any way, be required to divulge a privileged communication to the trial court during trial.

Because the attorney-client privilege may frustrate the fact-finding process, it exists in constant tension with the judicial system’s truth seeking goals. 

If the attorney client privilege could be pierced on the basis of an unpredictable manifest injustice standard, then this exception would swallow the protections of the privilege and undermine its purpose.


Other Articles of Interest:

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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