ANNOTATIONSCOMMENT
Confidentiality
The lawyer is part of a judicial system charged with upholding the law.
One of the lawyer's functions is to advise clients so that they
avoid any violation of the law in the proper exercise of their rights.
The observance of the ethical obligation of a lawyer to hold
inviolate confidential information of the client not only facilitates
the full development of facts essential to proper representation of the
client but also encourages people to seek early legal assistance.
Almost without exception, clients come to lawyers in order to
determine what their rights are and what is, in the maze of laws and
regulations, deemed to be legal and correct. The common law recognizes
that the client's confidences must be protected from disclosure. Based
upon experience, lawyers know that almost all
clients follow the advice given, and the law is upheld.
A fundamental principle in the client-lawyer relationship is that
the lawyer maintain confidentiality of information relating to the
representation. The client is thereby encouraged to communicate fully
and frankly with the lawyer even as to embarrassing or legally damaging
subject matter.
The principle of confidentiality is given effect in two related
bodies of law, the attorney-client privilege (which includes the work
product doctrine) in the law of evidence and the rule of confidentiality
established in professional ethics. The attorney-client privilege
applies in judicial and other proceedings in which a lawyer may be
called as a witness or otherwise required to produce evidence concerning
a client. The rule of client-lawyer confidentiality applies in
situations other than those where evidence is sought from the lawyer
through compulsion of law. The confidentiality rule applies not merely
to matters communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A
lawyer may not disclose such information except as authorized or
required by the Rules of Professional Conduct or other law.
The attorney-client privilege is more limited than the ethical
obligation of a lawyer to guard confidential information of the client.
This ethical precept, unlike the evidentiary privilege, exists without
regard to the nature or source of information or the fact that others
share the knowledge. A lawyer should endeavor to act in a manner which
preserves the evidentiary privilege; for example, the lawyer should
avoid professional discussion in the presence of persons to whom the
privilege does not extend. A lawyer owes an obligation to advise the
client of the attorney-client privilege and timely to assert the
privilege unless it is waived by the client. See also Scope.
The requirement of maintaining confidentiality of information
relating to representation applies to government lawyers who may
disagree with the policy goals that their representation is designed to
advance.
Authorized Disclosure
A lawyer is impliedly authorized to make disclosure about a client
when appropriate in carrying out the representation, except to the
extent that the client's instructions or special circumstances limit
that authority. In litigation, for example, a lawyer may disclose
information by admitting a fact that cannot properly be disputed, or in
negotiation by making a disclosure that facilitates a satisfactory
conclusion.
Lawyers in a firm may, in the course of the firm's practice,
disclose to each other information relating to a client of the firm,
unless the client has instructed that particular information be confined
to specified lawyers.
Disclosure Adverse to Client
The confidentiality rule is subject to limited exceptions. In
becoming privy to information about a client, a lawyer may foresee that
the client intends to commit a crime. However, to the extent a lawyer
is required or permitted to disclose a client's purposes, the client
will be inhibited from revealing facts which would enable the lawyer to
counsel against a wrongful course of action. The public is better
protected if full and open communication by the client is encouraged
than if it is inhibited.
Several situations must be distinguished. First, the lawyer may
not counsel or assist a client in conduct that is criminal or
fraudulent. See Rule 1.2(d). Similarly, a lawyer has a duty under Rule
3.3(a)(4) not to use false evidence. This duty is essentially a special
instance of the duty prescribed in Rule 1.2(d) to avoid assisting a
client in criminal or fraudulent conduct.
Second, the lawyer may have been innocently involved in past
conduct by the client that was criminal or fraudulent. In such a
situation the lawyer has not violated Rule 1.2(d), because to "counsel
or assist" criminal or fraudulent conduct requires knowing that the
conduct is of that character.
Third, the lawyer may learn that a client intends prospective
conduct that is criminal. As stated in paragraph (b), the lawyer has
professional discretion to reveal information in order to prevent such
consequences.
The lawyer's exercise of discretion requires consideration of such
factors as the nature of the lawyer's relationship with the client and
with those who might be injured by the client, the lawyer's own
involvement in the transaction and factors that may extenuate the
conduct in question. Where practical, the lawyer should seek to
persuade the client to take suitable action. In any case, a disclosure
adverse to the client's interest should be no greater than the lawyer
reasonably believes necessary to the purpose. A lawyer's decision not
to take preventive action permitted by paragraph (b) does not violate
this rule.
Withdrawal
If the lawyer's service will be used by the client in materially
furthering a course of criminal or fraudulent conduct, the lawyer must
withdraw, as stated in Rule 1.16(a)(1).
After withdrawal the lawyer is required to refrain from making
disclosure of the clients' confidences, except as otherwise provided in
Rule 1.6. Neither this rule nor Rule 1.8(b) nor Rule 1.16(d) prevents
the lawyer from giving notice of the fact of withdrawal, and the lawyer
may also withdraw or disaffirm any opinion, document, affirmation, or
the like.
Where the client is an organization, the lawyer may be in doubt
whether contemplated conduct will actually be carried out by the
organization.
Where necessary to guide conduct in connection with this Rule, the lawyer may
make inquiry within the organization as indicated in Rule 1.13(b).
Dispute Concerning a Lawyer's Conduct
Where a legal claim or disciplinary charge alleges complicity of
the lawyer in a client's conduct or other misconduct of the lawyer
involving representation of the client, the lawyer may respond to the
extent the lawyer reasonably believes necessary to establish a defense.
The same is true with respect to a claim involving the conduct or
representation of a former client. The lawyer's right to respond arises
when an assertion of such complicity has been made. Paragraph (c) does
not require the lawyer to await the commencement of an action or
proceeding that charges such complicity, so that the defense may be
established by responding directly to a third party who has made such an
assertion. The right to defend, of course, applies where a proceeding
has been commenced. Where practicable and not prejudicial to the
lawyer's ability to establish the defense, the lawyer should advise the
client of the third party's assertion and request that the client
respond appropriately. In any event, disclosure should be no greater
than the lawyer reasonably believes is necessary to vindicate innocence,
the disclosure should be made in a manner which limits access to the
information to the tribunal or other persons having a need to know it,
and appropriate protective orders or other arrangements should be sought
by the lawyer to the fullest extent practicable.
If the lawyer is charged with wrongdoing in which the client's
conduct is implicated, the rule of confidentiality should not prevent
the lawyer from defending against the charge. Such a charge can arise
in a civil, criminal or professional disciplinary proceeding, and can be
based on a wrong allegedly committed by the lawyer against the client,
or on a wrong alleged by a third person; for example, a person claiming
to have been defrauded by the lawyer and client acting together. A
lawyer entitled to a fee is permitted by paragraph (c) to prove the
services rendered in an action to collect it. This aspect of the rule
expresses the principle that the beneficiary of a fiduciary relationship
may not exploit it to the detriment of the fiduciary. As stated above,
the lawyer must make every effort practicable to avoid unnecessary
disclosure of information relating to a representation, to limit
disclosure to those having the need to know it, and to obtain protective
orders or make other arrangements minimizing the risk of disclosure.
Disclosures Otherwise Required or Authorized
The attorney-client privilege is differently defined in various
jurisdictions. If a lawyer is called as a witness to give testimony
concerning a client, absent waiver by the client, paragraph (a) requires
the lawyer to invoke the privilege when it is applicable. The lawyer
must comply with the final orders of a court or other tribunal of
competent jurisdiction requiring the lawyer to give information about
the client.
The Rules of Professional Conduct in various circumstances permit
or require a lawyer to disclose information relating to the
representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these
provisions, a lawyer may be obligated or permitted by other provisions
of law to give information about a client. Whether another provision of
law supersedes Rule 1.6 is a matter of interpretation beyond the scope
of these Rules, but a presumption should exist against such a
supersession.
Former Client
Duty of confidentiality continues after the client-lawyer
relationship has terminated.
COMMITTEE COMMENT
This Rule raises the delicate and complicated question of the
balance between a lawyer's responsibility to keep clients' confidences
inviolate and the scope of permissible disclosure of such information in
particular instances. Rule 1.6 as proposed by the Committee sets forth
the broader scope of permissive disclosure as provided in DR 4-101(C)(3)
rather than the more limited scope of such disclosure as contained in
the Proposed Model Rules. EC 4-4 has been included in the comments to
further explain the distinction between the evidentiary attorney-client
privilege and the principle of confidentiality. Subparagraph (d) of the
Rule is comparable to DR 4-101(D) and is intended to amplify Rule 5.3.
ANNOTATION
Law reviews. For formal opinion of the Colorado Bar Association on
Ethical Duties of Attorney Selected by Insurer to Represent Its Insured, see
22 Colo. Law. 497 (1993).
For article, "The Maverick Council Member: Protecting Privileged
Attorney-Client Communications from Disclosure", see 23 Colo. Law. 63 (1994).
Annotator's note.
Rule 1.6 is similar to
DR 4-101 and DR 7-102 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing DR 4-101 have
been included in the annotations to this rule.
Cases construing DR 7-102 have been included
under Rule 1.2.
Public censure appropriate discipline for lawyer who delivered document
containing admissions of client to district attorney without first obtaining
client's authorization. People v. Lopez, 845 P.2d 1153 (Colo. 1993).
"Implied" consent not encompassed by rule authorizing attorney to
disclose client confidences or secrets. Such disclosure may be made only
after full disclosure to and with consent of client. People v. Lopez, 845 P.2d
1153 (Colo. 1993).
Disbarment appropriate where attorney accepted fees from a number of
clients prior to terminating her legal practice, failed to inform her clients
of such termination, failed to refund clients' retainer fees, failed to place
clients' funds in separate account, and gave clients' files to other lawyers
without clients' consent. People v. Tucker, 904 P.2d 1321 (Colo. 1995).
Cases Decided Under Former DR 4-101.
Law reviews. For article, "The Perjurious Defendant: A Proposed
Solution to the Defense Lawyer's Conflicting Ethical Obligations to the Court
and to His Client", see 59 Den. L.J. 75 (1981). For article, "Conflicts in
Settlement of Personal Injury Cases", see 11 Colo. Law. 399 (1982). For
article, "Incriminating Evidence: What to do With a Hot Potato", see 11
Colo. Law. 880 (1982). For article, "Ethics, Tax Fraud and the General
Practitioner", see 11 Colo. Law. 939 (1982). For article, "Prior Representation:
The Specter of Disqualification of Trial Counsel", see 11 Colo. Law. 1214 (1982).
For article, "The Search for Truth Continued: More Disclosure, Less
Privilege", see 54 U. Colo. L. Rev. 51 (1982).
For article, "The Search for Truth Continued, The Privilege Retained: A
Response to Judge Frankel", see 54 U. Colo. L. Rev. 67 (1982).
For article, "Some Comments on Conflicts of Interest and the Corporate
Lawyer", see 12 Colo. Law. 60 (1983).
For article, "Protecting Technical Information: The Role of the General
Practitioner", see 12 Colo. Law. 1215 (1983).
For article, "Potential Liability for Lawyers Employing Law Clerks", see 12
Colo. Law. 1243 (1983).
For article, "Attorney Disclosure: The Model Rules in the
Corporate/Securities Area", see 12 Colo. Law. 1975 (1983).
For comment, "Colorado's Approach to Searches and Seizures in Law Offices",
see 54 U. Colo. L. Rev. 571 (1983).
For casenote, "Caldwell v. District Court:
Colorado Looks at the Crime and Fraud Exception to the Attorney-Client
Privilege", see 55 U. Colo. L. Rev. 319 (1984).
For article, "Incest and Ethics: Confidentiality's Severest Test", see 61
Den. L.J. 619 (1984).
For article, "Defending the Federal Drug or Racketeering Charge", see 16
Colo. Law. 605 (1987).
For article, "Coping with the Paper Avalanche: A Survey on the Disposition
of Client Files", see 16 Colo. Law. 1787 (1987).
For comment, "Attorney-Client Confidences: Punishing the Innocent", see
61 U. Colo. L. Rev. 185 (1990).
For formal opinion of the Colorado Bar Association Ethics Committee on
Collaboration with Non-Lawyers in the Preparation and Marketing of Estate
Planning Documents, see 19 Colo. Law. 1793 (1990).
For article, "Sex, Lawyers and Vilification", see 21 Colo. Law. 469 (1992).
For formal opinion of the Colorado Bar Association Ethics Committee on
Preservation of Client Confidences in View of Modern Communications
Technology, see 22 Colo. Law. 21 (1993).
Prevailing rule is that it will be presumed that confidences were reposed
where an attorney-client relationship has been shown to have existed.
Osborn v. District Court, 619 P.2d 41 (Colo. 1980).
Ethical obligation to preserve client confidences continues
after termination of attorney-client relationship.
Rodriquez v. District Court, 719 P.2d 699 (Colo. 1986).
Trustee in bankruptcy succeeds to a debtor's right to assert or waive
the attorney-client privilege.
In re Inv. Bankers, Inc., 30 Bankr, 883 (Bankr. D. Colo. 1983).
Crime-fraud exception to attorney-client privilege recognized.
The code of professional responsibility recognizes the crime-fraud
exception to the attorney-client privilege and work-product doctrine.
Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).
Attorney's failure to safeguard a draft letter to a client in which the attorney suggests
that the client misrepresented his qualifications, and where federal prosecutor later used
the letter during the client's trial on federal criminal charges, violated DR 4-101(B)(1).
People v. O'Donnell, 955 P.2d 53 (Colo. 1998).
Bald assertion insufficient to warrant disqualification of district attorney.
Bald assertion by defendant that he made confidential statements to the
prosecutor during the existence of a prior attorney-client relationship
was insufficient to warrant disqualification of the district attorney.
Osborn v. District Court, 619 P.2d 41 (Colo. 1980).
An accused seeking to disqualify a prosecutor because of prior
representation of a co-defendant by a member of the prosecutor's
former firm must show that either the prosecutor or the firm
member, by virtue of the prior professional relationship with the
co-defendant, received confidential information about the accused
which was substantially related to the pending criminal action.
McFarlan v. District Court, 718 P.2d 247 (Colo. 1986).
It is no abuse of discretion for court to order public defender to withdraw
from a defendant's case where public defender's prior representation of a
prosecution witness and his present representation of defendant created a
conflict of interest. Rodriquez v. District Court, 719 P.2d 699 (Colo. 1986);
People v. Reyes, 728 P.2d 349 (Colo. App. 1986).
Prior employment of plaintiff's attorney by defendant does not
disqualify the attorney where the instant case is not substantially related
to any matter in which the attorney previously
represented the defendant. Food Brokers, Inc. v. Great Western Sugar, 680
P.2d 857 (Colo. App. 1984).
Disbarment warranted where attorney filed false pleadings and
disciplinary complaints, disclosed information concerning the filing of
disciplinary complaints, offered to withdraw a disciplinary complaint filed
against a
judge in exchange for a favorable ruling, failed to serve copies of pleadings
on opposing counsel, revealed client confidences and material considered
derogatory and harmful to the client, aggravated by a repeated failure to
cooperate with the investigation of misconduct, disruption of disciplinary
proceedings, and a record of prior discipline. People v. Bannister 814 P.2d
801 (Colo. 1991).
An attorney must disclose information to the court in camera if ordered
to do so. People v. Salazar, 835 P.2d 592 (Colo. App. 1992).
Applied in People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980);
People v. Schultheis, 638 P.2d 8 (Colo. 1981); People v. Smith, 778 P.2d 685 (Colo. 1989).
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