Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Colorado |
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| (United States) Firm Davis Graham Updated 18 Mar 2020 | |
| Is the ACP recognized in your jurisdiction? | Yes. |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | [1] N/A
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| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | No |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Upjohn approach, control group test |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Yes. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Yes. |
| Is the common interest doctrine recognized in your jurisdiction? | Yes. |
| How is the doctrine articulated in your jurisdiction? | “The common interest privilege is not an independent basis for privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties. It is well established that not every disclosure of attorney-client communications constitutes a waiver of the privilege. Communications shared with third persons who have a common legal interest with respect to the subject matter thereof will be deemed neither a breach nor a waiver of the confidentiality surrounding the attorney-client relationship. The common interest doctrine does not require existing or impending litigation. It includes pre-existing confidential communications and documents that are shared during a common enterprise. Accordingly, when a party invokes the common interest privilege, the court must focus on the circumstances surrounding the disclosure of the communications or documents rather than on when the communications or documents were generated. The privilege applies only to communications given in confidence, and intended and reasonably believed to be part of an on-going and joint effort to set up a common legal strategy.” Black v. Sw. Water Conservation Dist., 74 P.3d 462, 469 (Colo. App. 2003) (internal citations omitted). |
| Must a common interest agreement be in writing? | No. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Litigation funding is permitted, but its governed by the Rules of Professional Conduct and Rule 1.8(f) which states: “A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.” |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | No. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | A v. Dist. Court of Second Judicial Dist., 550 P.2d 315 (Colo. 1976) |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Colorado Rule of Civil Procedure 26(b)(3). |
| What are the elements of the protection in your jurisdiction? | A party may not generally obtain material prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the party's attorney, consultant, surety, indemnitor, insurer, or agent). |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. |
| Does your jurisdiction recognize a mediation privilege? | No. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Only as an evidentiary rule that such negotiations are not admissible if offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction. |
Lex Mundi Global Attorney-Client Privilege Guide
Yes.
[1] N/A
No
Upjohn approach, control group test
No.
Yes.
Yes.
Yes.
“The common interest privilege is not an independent basis for privilege, but an exception to the general rule that the attorney-client privilege is waived when privileged information is disclosed to third parties. It is well established that not every disclosure of attorney-client communications constitutes a waiver of the privilege. Communications shared with third persons who have a common legal interest with respect to the subject matter thereof will be deemed neither a breach nor a waiver of the confidentiality surrounding the attorney-client relationship. The common interest doctrine does not require existing or impending litigation. It includes pre-existing confidential communications and documents that are shared during a common enterprise. Accordingly, when a party invokes the common interest privilege, the court must focus on the circumstances surrounding the disclosure of the communications or documents rather than on when the communications or documents were generated. The privilege applies only to communications given in confidence, and intended and reasonably believed to be part of an on-going and joint effort to set up a common legal strategy.” Black v. Sw. Water Conservation Dist., 74 P.3d 462, 469 (Colo. App. 2003) (internal citations omitted).
No.
Litigation funding is permitted, but its governed by the Rules of Professional Conduct and Rule 1.8(f) which states: “A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.”
No.
Yes.
A v. Dist. Court of Second Judicial Dist., 550 P.2d 315 (Colo. 1976)
Colorado Rule of Civil Procedure 26(b)(3).
A party may not generally obtain material prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the party's attorney, consultant, surety, indemnitor, insurer, or agent).
Yes.
No.
Only as an evidentiary rule that such negotiations are not admissible if offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction.