Confidentiality, Attorney-Client Privilege, and Regulation of Practice
Confidentiality under Rule 1.6
Rule 1.6 is broader than the attorney-client privilege. It protects all information relating to the representation, regardless of source, and continues after the representation ends. A lawyer may not reveal it unless the client gives informed consent, disclosure is impliedly authorized to carry out the representation, or an exception applies. Colorado's permissive exceptions include disclosures reasonably necessary to comply with law or a court order, to obtain legal-ethics advice, to establish a claim or defense in a controversy with the client, to detect or resolve conflicts, and to prevent reasonably certain death or substantial bodily harm. A lawyer must make reasonable efforts to prevent unauthorized disclosure by others in the firm and must take reasonable precautions with electronic communications.
Attorney-client privilege and work product
The attorney-client privilege is an evidentiary rule, codified in Colorado at C.R.S. § 13-90-107(1)(b). It protects confidential communications between a client and lawyer made for the purpose of obtaining legal advice, not the underlying facts. The privilege belongs to the client and can be waived; it does not apply when third parties are present, when the communication is not intended to be confidential, or when the crime-fraud exception applies-communications to further a crime or fraud. Work product, protected under C.R.C.P. 26(b)(3), covers documents and tangible things prepared in anticipation of litigation.
Regulation of the practice of law
The Colorado Supreme Court has inherent authority to regulate the practice of law, including admissions, discipline, and unauthorized practice. The Office of Attorney Regulation Counsel investigates and prosecutes misconduct; the Presiding Disciplinary Judge adjudicates formal cases. Rule 5.5 prohibits assisting unauthorized practice and sets limits on multijurisdictional practice.
Worked example
A client tells the lawyer, 'I moved the company cash into an offshore account last month, and I plan to keep doing it.' The statement about the past transfer is confidential and generally privileged; the lawyer may not reveal it. The ongoing plan is different: the crime-fraud exception may remove privilege, and Rule 1.6 permits disclosure to prevent or rectify certain financial crimes. The lawyer should counsel the client to stop and consider withdrawal; the lawyer may not assist the fraud.
Traps that cost marks
- Equating confidentiality with privilege; privilege is narrower and applies only in legal proceedings.
- Believing client identity and fee information are always privileged.
- Overlooking waiver by third-party presence or by putting the lawyer's advice in issue.
- Disclosing confidences to 'help' a friend or to defend a grievance without satisfying Rule 1.6(b).