“There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person shall not be examined as a witness in the following cases … . ” Thus begins an important Colorado statute establishing evidentiary privileges (not to be confused with the constitutional protection against self-incrimination in a criminal case).
If an evidentiary privilege is in effect, communications falling within the scope of the privilege, oral or written, are protected from compelled disclosure.
The list of evidentiary privileges is long and includes communications between a lawyer and a client; between spouses; between partners to a civil union; with a member of the clergy performing official functions; between a physician and a patient; between a certified public accountant and a client; and between a mental health care professional and a patient. In addition, journalists and other “newspersons” can’t be compelled to testify about information they acquired while acting in their professional capacity; interpreters can’t be compelled to testify about privileged communications they facilitated on behalf of a hearing-impaired person; and mediators can’t be compelled to testify about information they acquired in confidence during a mediation.
As you might expect (we’re talking law here … ), there are exceptions and limitations that go with all of these privileges. For example, spousal privilege doesn’t apply if one spouse is suing the other or one spouse has committed a crime against the other or the spouses are talking about committing a crime together. The physician-patient privilege is no longer applicable if the patient is suing the doctor. A certified public accountant can’t assert the accountant-client privilege if the accountant is being investigated by the state agency that regulates accountants — the board of accountancy. A newsperson can’t refuse to testify about a class 1, 2 or 3 felony he or she observed.
Also, the protection from compelled disclosure offered by an evidentiary privilege can be lost by waiver or by actions inconsistent with an expectation of confidentiality. In this regard, the Colorado Supreme Court ruled in December that a chiropractor being sued by a former patient could obtain a copy of a recorded conversation between the patient and her lawyer because the patient’s parents were present at the time the recording was made. The holding in this case is that the presence of a third party destroys the attorney-client privilege, unless the third party’s presence is necessary to assist in the attorney’s representation of the client. The Supreme Court, with three justices dissenting, affirmed the trial court’s conclusion that the patient, who had suffered a stroke while at the chiropractor’s office resulting in various impairments, didn’t need her parents’ help in dealing with her lawyer. The trial court based its decision in part on Facebook posts by the patient saying she was getting along just fine after the stroke and expected a full recovery.
An important lesson to be learned here is that, in most circumstances, you should leave family and friends at home when meeting with your lawyer.
And be careful what you say on Facebook.
Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. Contact him at firstname.lastname@example.org.