attorney-client privilege in Colorado

2026Wesp, 33 P.3d at 197 . ¶ 23 We review a trial court’s conclusions regarding the attorney- client privilege for an abuse of discretion.

2023For nearly two centuries, courts have “extolled the virtues of protecting attorney-client communications because the privilege ultimately furthers the rule of law and the administration of justice.” Id. 11 ¶19 The attorney-client privilege protects communications between an attorney and the attorney’s client relating to legal advice.

2018The crime-fraud exception to the attorney-client privilege "provides that communications between a client and his attorney will not be privileged if they are made for the purpose of aiding the commission of a future crime or of a present continuing crime." Id. at 324.

2009In A. v. District Court, 191 Colo. 10, 22 , 550 P.2d 315, 324 (1976), the court held that the attorney-client privilege must give way when the communication with the attorney is made for the purpose of aiding the commission of a future crime or of a present continuing crime.

2025William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.6:103, at 137 (2d ed. Supp. 1997) (stating, while discussing the attorney-client privilege, that "the fact that a client has discussed the facts with a lawyer does not protect the client from thereafter being asked about the facts"; otherwise, "a client could immunize herself against interrogation about the facts simply by telling them to her lawyer"), cited with approval in Gordon v. Boyles , 9 P.3d 1106, 1123 (Colo. 2000).

2020It “does not protect any underlying and otherwise unprivileged facts that are incorporated into a client’s communication to [or with] his attorney[.]” Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000); id. at 1124 (The attorney-client privilege does not “encompass otherwise unprivileged facts disclosed in attorney-client relations, and unprivileged facts cannot become privileged merely by incorporation into a communication with an attorney.”). ¶ 21 Of more significance here, the privilege ordinarily does not encompass information about the subject matter of an attorney-client communication: [m]

2026See id. at 703 ; see also People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006) (noting that a defendant may impliedly waive the attorney-client privilege by placing at issue the “propriety of advice given” by their attorney).

2025See, e.g., People v. Trujillo, 144 P.3d 539, 543 (Colo. 2006). 11 ¶ 24 Accordingly, we affirm the trial court’s application of the attorney-client privilege as to the portions of the Quimby Report that set forth legal advice.

1989See Losavio v. District Court, 188 Colo. 127, 132-33 , 533 P.2d 32, 35 (1975) (“As defined by the legislature and courts of this state, the attorney-client privilege is personal with the client.”); see also Law Offices of Bernard D.

1989See Losavio v. District Court, 188 Colo. 127, 132-33 , 533 P.2d 32, 35 (1975) (“As defined by the legislature and courts of this state, the attorney-client privilege is personal with the client.”); see also Law Offices of Bernard D.

2023We must decide whether Madera or Alcon controls. ¶2 In Madera, we held, in the context of a criminal defendant’s post-plea ineffective assistance of counsel claim, that a request for an in camera review of defense counsel’s entire case file may not be granted without an adequate factual basis supporting a good faith belief by a reasonable person that not all the documents in the case file are protected by the attorney-client privilege. 112 P.3d at 689–90.

2023Fox v. Alfini, 2018 CO 94, ¶ 19 , 432 P.3d 596, 600 . ¶22 We determined in Madera that an in camera review is appropriate only “when a party opposing assertion of the attorney-client privilege makes some showing that an exception to the attorney-client privilege applies or that the privilege has been waived either explicitly or impliedly.” 112 P.3d at 690 .

2020The privilege extends only to matters communicated by or to an attorney’s client in the course of gaining counsel, advice, or direction with respect to the client’s rights or obligations. § 13-90- 107(1)(b); Wesp, 33 P.3d at 196 ; Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000); see also Lanari v. People, 827 P.2d 495, 499 (Colo. 1992) (“[T]he privilege applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential.”). “[I]f a communication 19 to which the privilege has previously attached is subsequently disclosed

2006See, e.g., Wesp, 33 P.3d at 198 (noting that “if a communication to which the privilege has previously attached is subsequently disclosed to a third party, then the protection afforded by the privilege is impliedly waived”); Lanari, 827 P.2d at 500 (holding that statements made initially in confidence to an attorney lose the shield of the attorney-client privilege if the statements are subsequently disclosed to third parties); Fearnley v. Fearnley, 44 Colo. 417, 430 , 98 P. 819 , 824 (1908) (citing Hunt v. Blackburn, 128 U.S. 464, 470 , 9 S.Ct. 125 , 32 L.Ed. 488 (1888)) (finding that a chent’

2020The attorney-client privilege couldn’t shield any otherwise privileged 8 “[T]he burden of establishing a waiver is on the party seeking to overcome the privilege.” Miller, 737 P.2d at 838.

1999Prior to trial, the State served a subpoena duces tecum on Dr. Gliss-man requesting “all the written materials, tape recorded materials, videotape materials of any kind that were ... generated in association with [his] contact with Mr. Ullery.” Defense counsel moved to quash the subpoena, asserting that the materials were being used in preparation for trial and citing Miller v. District Court In and For City and County of Denver, 737 P.2d 834 (Colo.1987) (holding that requested materials of defense psychiatrist were protected pursuant to the attorney client privilege).

2003Morley, P.C. v. MacFarlane, supra. It is well established that the attorney-client privilege attaches to corporations as well as to individuals.

1992Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo.1982) (an attorney may not invoke the attorney-client privilege if the communications are made for the purpose of aiding the commission of a future crime).

2025And, certainly, the trial court acted within its discretion in concluding that the legal advice Price included in the report is subject to the attorney-client privilege. ¶ 23 We reject the remainder of the Association’s arguments as follows: • Employee statements: We needn’t consider whether the attorney-client privilege extends to the reporting of employee statements from interviews with Quimby, see Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981), because we’re limiting our application of this privilege to those portions of the Quimby Report that set forth legal advice.

2018The Attorney-Client Privilege and the Crime-Fraud Exception ¶23 "The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States , 449 U.S. 383 , 389, 101 S.Ct. 677 , 66 L.Ed.2d 584 (1981).

2020Greschler cites no applicable authority supporting such a proposition, and again we have seen none. ¶31 In reaching the foregoing conclusions, we are not persuaded by Greschler’s reliance on Mountain States Telephone & Telegraph Co. v. DiFede, 780 P.2d 533 , 542–44 (Colo. 1989), and League, 374 N.W.2d at 855–57. ¶32 In Mountain States, 780 P.2d at 542–43, we concluded that the plaintiff had impliedly waived the attorney-client privilege with respect to communications that she had had with her counsel by expressly contending that she relied to her detriment on statements made by opposing counse

2020Greschler cites no applicable authority supporting such a proposition, and again we have seen none. ¶31 In reaching the foregoing conclusions, we are not persuaded by Greschler’s reliance on Mountain States Telephone & Telegraph Co. v. DiFede, 780 P.2d 533 , 542–44 (Colo. 1989), and League, 374 N.W.2d at 855–57. ¶32 In Mountain States, 780 P.2d at 542–43, we concluded that the plaintiff had impliedly waived the attorney-client privilege with respect to communications that she had had with her counsel by expressly contending that she relied to her detriment on statements made by opposing counse

2018First, before a court may review the privileged documents in camera, it must "require a showing of a factual basis adequate to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the crime or fraud exception to the attorney-client privilege has occurred." Caldwell , 644 P.2d at 33 (Colo. 1982).

2018Caldwell , 644 P.2d at 33 . ¶25 The party seeking to overcome the attorney-client privilege has the burden of establishing that the crime-fraud exception applies.

2019In other words, “under a variety of circumstances the cloak of confidentiality afforded by the attorney-client privilege does not extend to particular communications between an attorney (or his agent) and a client.” Id.

2019In D.A.S., the supreme court held that the attorney-client privilege did not attach to the testimony and report of an expert who conducted a parent-child interactional assessment. 863 P.2d at 295-96 .

1994United States v. Carr, 437 F.2d 662, 663 (D.C.Cir.1970), cert. denied, 401 U.S. 920 , 91 S.Ct. 907 , 27 L.Ed.2d 823 (1971); see also Noggle v. Marshall, 706 F.2d 1408 (6th Cir.) (finding that attorney-psychiatrist-client privilege is not mandated by effective counsel requirements), cert. denied, 464 U.S. 1010 , 104 S.Ct. 530 , 78 L.Ed.2d 712 (1983); Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981) (concluding that admission of psychiatric testimony neither violated the attorney-client privilege nor deprived the defendant of his Sixth Amendment right to effective assistance of counsel), cert. d

1994United States v. Carr, 437 F.2d 662, 663 (D.C.Cir.1970), cert. denied, 401 U.S. 920 , 91 S.Ct. 907 , 27 L.Ed.2d 823 (1971); see also Noggle v. Marshall, 706 F.2d 1408 (6th Cir.) (finding that attorney-psychiatrist-client privilege is not mandated by effective counsel requirements), cert. denied, 464 U.S. 1010 , 104 S.Ct. 530 , 78 L.Ed.2d 712 (1983); Granviel v. Estelle, 655 F.2d 673 (5th Cir.1981) (concluding that admission of psychiatric testimony neither violated the attorney-client privilege nor deprived the defendant of his Sixth Amendment right to effective assistance of counsel), cert. d

1987See, e.g., United States v. Alvarez, 519 F.2d 1036, 1046 (3d Cir.1975) (“[i]f the expert is ... used as a witness on behalf of the defendant, obviously the cloak of privilege ends”); Tucker v. State, 484 So.2d 1299, 1301 (Fla.Dist.Ct.App.) (allowing expert to be deposed waived the privilege because “once communications protected by the attorney-client privilege are voluntarily disclosed, the privilege is waived and cannot be reclaimed”), review denied, 494 So.2d 1153 (Fla.1986); see generally McCormick on Evidence § 93 (E.

1987Alvarez, 519 F.2d at 1046-47 . [4] Indeed, in most cases involving prosecution attempts to use defense-retained psychiatric *884 experts, courts have afforded protection for the defense expert although in many cases courts have relied on the attorney-client privilege as the basis for their holding.

2025Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the attorney-client privilege in a CORA case); City of Colorado Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the deliberative process privilege in a CORA case); see also Land Owners United, LLC v. Waters, 293 P.3d 86 , 95 4 (Colo. App. 2011) (“When reviewing matters of discovery and privilege, we apply an abuse of discretion st

2020City of Colorado Springs v. White, 967 P.2d 1042, 1056 (Colo. 1998); see also § 24- 72-204(1)(a) (recognizing records are not authorized for disclosure if “such inspection would be contrary to any state statute” and the attorney-client privilege is codified in state statute). ¶ 24 Under FOIA, when a public entity wishes to prevent the disclosure of requested public records, the public entity “must submit an affidavit ‘identifying the documents withheld, the FOIA exemptions claimed, and a particularized explanation of why each document falls within the claimed exemption.’” Burton v. Wolf, 803 F

2025Water Conservation Dist., 74 P.3d 462, 468 (Colo. App. 2003) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the attorney-client privilege in a CORA case); City of Colorado Springs v. White, 967 P.2d 1042, 1057 (Colo. 1998) (reviewing under an abuse of discretion standard a trial court’s conclusions regarding application of the deliberative process privilege in a CORA case); see also Land Owners United, LLC v. Waters, 293 P.3d 86 , 95 4 (Colo. App. 2011) (“When reviewing matters of discovery and privilege, we apply an abuse of discretion st

2025Black, 74 P.3d at 467 ; see also § 24-72- 204(3)(a)(IV). ¶ 15 “The attorney-client privilege extends only to matters (1) communicated by or to the client in the course of gaining counsel, advice, or direction about the client’s rights or obligations; and (2) under circumstances giving rise to a reasonable expectation that the statements will be treated as confidential.” Bjornsen, ¶ 54. 6 ¶ 16 The burden of establishing the applicability of the attorney- client privilege rests with the party claiming the privilege, and the burden of establishing a waiver rests with the party seeking to overcome

1993Relying on B.B. v. People, 785 P.2d 132 (Colo.1990), the mother's counsel objected, arguing that the attorney-client privilege protected the testimony and report from disclosure.

1993Relying on B.B. v. People, 785 P.2d 132 (Colo.1990), she argued that the attorney-client privilege protected the testimony and report from disclosure.

2002Nat'l Farmers, 718 P.2d at 1049 (citing Upjohn, 449 U.S. at 390-91 , 101 S.Ct. 677 ); see also Gordon, 9 P.3d at 1123 (citing Upjohn, 449 U.S. at 390 , 101 S.Ct. 677 ); Denver Post Corp. v. University of Colorado, 739 P.2d 874, 880-81 (Colo.Ct.App.1987) (holding that communications between the University of Colorado's counsel and former employees of the University concerning activities during their period of employment may be protected by the attorney-client privilege under the rationale presented in Upjohn, but holding that the University waived the privilege by disclosing the documents); Shr

2002Nat'l Farmers, 718 P.2d at 1049 (citing Upjohn, 449 U.S. at 390-91 , 101 S.Ct. 677 ); see also Gordon, 9 P.3d at 1123 (citing Upjohn, 449 U.S. at 390 , 101 S.Ct. 677 ); Denver Post Corp. v. University of Colorado, 739 P.2d 874, 880-81 (Colo.Ct.App.1987) (holding that communications between the University of Colorado's counsel and former employees of the University concerning activities during their period of employment may be protected by the attorney-client privilege under the rationale presented in Upjohn, but holding that the University waived the privilege by disclosing the documents); Shr

1987The attorney-client privilege does not extend to knowledge obtained by independent observation, but the privilege does protect the substance of confidential communications from use by the prosecution in its case-in-chief. “ ‘[I]t is fundamentally unfair to use defendant’s incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution’s case to establish his guilt.’” State v. Craney, 347 N.W.2d 668, 672 (Iowa), cert. denied, 469 U.S. 884 , 105 S.Ct. 255 , 83 L.Ed.2d 192 (1984) (quoting Collins v. Auger, 428 F.Supp. 1079, 1082-83 (S.D.

1987The attorney-client privilege does not extend to knowledge obtained by independent observation, but the privilege does protect the substance of confidential communications from use by the prosecution in its case-in-chief. "`[I]t is fundamentally unfair to use defendant's incriminating admissions to a psychiatrist during a psychiatric examination as part of the prosecution's case to establish his guilt.'" State v. Craney, 347 N.W.2d 668, 672 (Iowa), cert. denied, 469 U.S. 884 , 105 S.Ct. 255 , 83 L.Ed.2d 192 (1984) (quoting Collins v. Auger, 428 F.Supp. 1079, 1082-83 (S.D.

2022A. Attorney-Client Privilege ¶26 The attorney-client privilege covers “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 (quoting People v. Lesslie, 24 P.3d 22, 26 (Colo. App. 2000)).

2005Without the privileges, frank discussions would not occur between clients and their attorneys, *690 and attorneys would be unable to explore fully the best means of presenting their clients’ cases. 2 A. Attorney-Client 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.” People v. Lesslie, 24 P.3d 22, 26 (Colo.App.2000).

1994Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350 , 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege).

1994Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350 , 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege).

1994Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350 , 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege).

1994Hutchinson v. People, 742 P.2d 875 (Colo.1987) (handwriting expert hired by defense covered by attorney-client privilege); Miller v. District, 737 P.2d 834 (Colo.1987) (psychiatrist hired by defense counsel is an agent of defense counsel and covered by the attorney-client privilege); Bellmann v. District Court, 187 Colo. 350 , 531 P.2d 632 (1975) (insurance investigator hired by insurance company defending client is covered by the attorney-client privilege).

2025That argument pertains to the work product doctrine, see Nat’l Farmers, 718 P.2d at 1047 -48 — a basis the District and the Records Custodian didn’t rely on and the trial court didn’t cite in support of nondisclosure. • Waiver of the privilege: The District didn’t waive the attorney-client privilege by asserting it as a basis to resist disclosure of the Quimby Report or by providing general testimony (through its attorney) about the report at the hearing to resolve the issue of privilege.

2002Nat'l Farmers, 718 P.2d at 1049 (citing Upjohn, 449 U.S. at 390-91 , 101 S.Ct. 677 ); see also Gordon, 9 P.3d at 1123 (citing Upjohn, 449 U.S. at 390 , 101 S.Ct. 677 ); Denver Post Corp. v. University of Colorado, 739 P.2d 874, 880-81 (Colo.Ct.App.1987) (holding that communications between the University of Colorado's counsel and former employees of the University concerning activities during their period of employment may be protected by the attorney-client privilege under the rationale presented in Upjohn, but holding that the University waived the privilege by disclosing the documents); Shr