Yes. And the confidentiality that protects that online consultation is the same protection that has shielded communications between lawyers and clients for centuries.
Whether you call, send an email, meet in person, or connect over a video call, the privilege attaches the moment you consult a lawyer about your legal situation, even before you retain anyone.
I get this question regularly at my firm, often from people who are nervous about putting anything in writing or saying something over the phone.
The concern makes sense. But the law is clear on this point, and understanding it matters if you are facing criminal charges and trying to decide who to call.
The Privilege Attaches Before You Hire Anyone
Under Colorado Rules of Professional Conduct Rule 1.18, any person who consults with a lawyer about the possibility of forming an attorney-client relationship is a prospective client.
The rule is explicit: even when no representation follows, a lawyer who learned information from a prospective client shall not use or reveal that information. That protection applies regardless of whether the consultation was in person, by telephone, by email, or by video call.
Colorado courts have long recognized that the attorney-client relationship arises the moment someone consults an attorney about their case.
The Colorado Supreme Court stated in People v. Bennett, 810 P.2d 661, 664 (Colo. 1991), that the attorney-client privilege is established by the act of a client seeking professional advice from a lawyer, and that the relationship may be inferred from the conduct of the parties. The key factor is whether you, as the client, believed the relationship existed.
That is a low threshold by design. The law does not require you to have signed a retainer, paid a fee, or gotten confirmation from the attorney.
If you consulted a lawyer about your legal problem with the reasonable belief that the communication was confidential, the privilege applies.
One caveat to consider: Even though the communication with your lawyer is privileged, be very careful with communications like e-mails that could be discovered by other parties.
When in doubt, don’t put it in writing. Whether that e-mail could be used against you, is a separate issue. Best practices: certain things should be talked about in person with your counsel.
The Colorado Statutory and Ethical Framework
Colorado codified the attorney-client privilege in C.R.S. 13-90-107(1)(b). The statute provides that an attorney shall not be examined without the consent of the client as to any communication made by the client to the attorney in the course of professional employment. The same protection extends to the attorney’s secretary, paralegal, legal assistant, and other support staff.
The Colorado Supreme Court, in People v. Madera, 112 P.3d 688, 690 (Colo. 2005), recognized that Colorado applies a presumption in favor of the attorney-client privilege.
That presumption reflects a policy choice: the legal system needs people to speak candidly with their lawyers, and that candor is only possible if the client knows the conversation is protected.
The ethical obligation runs alongside the evidentiary one. Colorado Rule of Professional Conduct 1.6 prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent or the disclosure is impliedly authorized to carry out the representation. The rule covers current clients, former clients, and, through RPC 1.18, prospective clients.
Federal Law Recognizes the Same Privilege
For anyone facing federal charges or consulting a lawyer about federal matters, Federal Rule of Evidence 501 governs.
Under FRE 501, the common law as interpreted by federal courts governs claims of privilege. Federal courts have consistently recognized attorney-client privilege as protecting confidential communications between clients and their attorneys made for the purpose of obtaining legal advice.
The U.S. Supreme Court addressed the scope of the privilege directly in Upjohn Co. v. United States, 449 U.S. 383 (1981), emphasizing that the privilege exists to encourage the full and frank communication between attorneys and their clients that is necessary for sound legal advice and effective representation. That rationale applies equally whether the communication happens in a conference room or over a video call.
To effectively defend you, your attorney requires open communication about the facts of your case. If those facts incriminate you, the attorney/client privilege exists to encourage sharing this information. Your attorney can craft a defense based on the facts, and you know that it is safe to discuss the information with your attorney.
What the Privilege Actually Covers
In practical terms, the privilege protects the content of your communications with a lawyer, not the underlying facts. What you say to me in a consultation is protected. The facts of what happened are not erased from the world by telling me about them. However, what you told me, and when, and how, cannot be disclosed without your consent.
The privilege covers communications in every format:
- In-person meetings at the lawyer’s office
- Telephone calls, including calls made from a cell phone
- Video consultations over Zoom, FaceTime, Teams, or similar platforms
- Emails and written messages sent to request or receive legal advice
- Text messages when the context makes clear you are seeking legal guidance
- Notes written on paper and passed to an attorney during a proceeding
The Colorado Supreme Court confirmed in Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo. 2000), that the privilege extends both to communications from the client to the attorney and from the attorney to the client, provided the attorney’s communication would reveal the substance of what the client disclosed.
The Privilege Survives the Consultation
One question I hear is whether the confidentiality lasts. It does. Colorado attorneys cannot disclose privileged communications after a case is resolved, after you decide not to retain the attorney, or after you pass away. The duty of confidentiality under RPC 1.6 does not have an expiration date.
That permanence matters in criminal defense. A conversation you have with a lawyer today about a matter under investigation, even one that never results in charges, is protected. What you disclosed in that consultation cannot be used against you later.
Limits You Should Know
No privilege is absolute. Two exceptions are worth knowing. The crime-fraud exception applies when a client consults a lawyer in furtherance of a future crime or fraud, not to discuss a past act but to plan a future one.
The purpose of the consultation, not merely the subject matter, determines whether the exception applies. Caldwell v. District Court, 644 P.2d 26, 31 (Colo. 1982).
There is also a narrow exception when a lawyer must disclose information to prevent reasonably certain death or substantial bodily harm. These are narrow exceptions with a high threshold. They do not apply to the ordinary criminal defense consultation.
The Bottom Line
If you are considering calling a criminal defense attorney, the format of that call does not change your protections. A Zoom consultation is as confidential as a walk-in meeting. An email asking about your case is protected the same way a phone call is.
The law is designed this way on purpose. Effective legal representation requires that you be able to tell your lawyer everything. The privilege is what makes that possible.
Have questions about a criminal matter in Colorado Springs or El Paso County? Call The McDowell Law Firm at 719-227-0022 for a free, confidential consultation. Communications are protected by attorney-client privilege during your call regarding representation.
The post Do Criminal Defense Lawyers Offer Confidential Online Consultations? first appeared on McDowell Law Firm.
from McDowell Law Firm https://mcdowellfirm.com/do-criminal-defense-lawyers-offer-confidential-online-consultations/
https://mcdowellfirm.com/practice-area/dui-defense/
No comments:
Post a Comment