2021 Colorado Code
Title 13 - Courts and Court Procedure
Article 90 - Witnesses
Part 1 - General Provisions
§ 13-90-107. Who May Not Testify Without Consent - Definitions

1. There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person must not be examined as a witness in the following cases:
   1. 1. Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage. (a) (I) Except as otherwise provided in section 14-13-310 (4), C.R.S., a husband shall not be examined for or against his wife without her consent nor a wife for or against her husband without his consent; nor during the marriage or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the marriage; but this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both spouses when the alleged offense occurred prior to the date of the parties' marriage. However, this exception shall not attach if the otherwise privileged information is communicated after the marriage.
      2. The privilege described in this paragraph (a) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1)(a)(IV) and (1)(a)(V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2)(a), C.R.S. In this instance, during the marriage or afterward, a husband shall not be examined for or against his wife as to any communications intended to be made in confidence and made by one to the other during the marriage without his consent, and a wife shall not be examined for or against her husband as to any communications intended to be made in confidence and made by one to the other without her consent.
      3. Communications between a husband and wife are not privileged pursuant to this paragraph (a) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.
      4. The burden of proving the existence of a marriage for the purposes of this paragraph (a) shall be on the party asserting the claim.
      5. Notice of the assertion of the marital privilege shall be given as soon as practicable but not less than ten days prior to assertion at any hearing.
         1. (a.5) (I) Except as otherwise provided in section 14-13-310 (5), C.R.S., a partner in a civil union shall not be examined for or against the other partner in the civil union without the other partner's consent, nor during the civil union or afterward shall either be examined without the consent of the other as to any communications made by one to the other during the civil union; except that this exception does not apply to a civil action or proceeding by one against the other, a criminal action or proceeding for a crime committed by one against the other, or a criminal action or proceeding against one or both partners when the alleged offense occurred prior to the date of the parties' certification of the civil union. However, this exception shall not attach if the otherwise privileged information is communicated after the certification of the civil union.
         2. The privilege described in this paragraph (a.5) does not apply to class 1, 2, or 3 felonies as described in section 18-1.3-401 (1)(a)(IV) and (1)(a)(V), C.R.S., or to level 1 or 2 drug felonies as described in section 18-1.3-401.5 (2)(a), C.R.S. In this instance, during the civil union or afterward, a partner in a civil union shall not be examined for or against the other partner in the civil union as to any communications intended to be made in confidence and made by one to the other during the civil union without the other partner's consent.
         3. Communications between partners in a civil union are not privileged pursuant to this paragraph (a.5) if such communications are made for the purpose of aiding the commission of a future crime or of a present continuing crime.
         4. The burden of proving the existence of a civil union for the purposes of this paragraph (a.5) shall be on the party asserting the claim.
         5. Notice of the assertion of the privilege described in this paragraph (a.5) shall be given as soon as practicable but not less than ten days prior to assertion at any hearing.
         6. For the purposes of this paragraph (a.5), “partner in a civil union” means a person who has entered into a civil union established in accordance with the requirements of article 15 of title 14, C.R.S.

   2. An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity.
   3. A clergy member, minister, priest, or rabbi shall not be examined without both his or her consent and also the consent of the person making the confidential communication as to any confidential communication made to him or her in his or her professional capacity in the course of discipline expected by the religious body to which he or she belongs.
   4. A physician, surgeon, or registered professional nurse duly authorized to practice his or her profession pursuant to the laws of this state or any other state shall not be examined without the consent of his or her patient as to any information acquired in attending the patient that was necessary to enable him or her to prescribe or act for the patient, but this paragraph (d) shall not apply to:
      1. A physician, surgeon, or registered professional nurse who is sued by or on behalf of a patient or by or on behalf of the heirs, executors, or administrators of a patient on any cause of action arising out of or connected with the physician's or nurse's care or treatment of such patient;
      2. A physician, surgeon, or registered professional nurse who was in consultation with a physician, surgeon, or registered professional nurse being sued as provided in subparagraph (I) of this paragraph (d) on the case out of which said suit arises;
      3. A review of a physician's or registered professional nurse's services by any of the following:
         1. The governing board of a hospital licensed pursuant to part 1 of article 3 of title 25, C.R.S., where said physician or registered professional nurse practices or the medical staff of such hospital if the medical staff operates pursuant to written bylaws approved by the governing board of such hospital;
         2. An organization authorized by federal or state law or contract to review physicians' or registered professional nurses' services or an organization which reviews the cost or quality of physicians' or registered professional nurses' services under a contract with the sponsor of a nongovernment group health-care program;
         3. The Colorado medical board, the state board of nursing, or a person or group authorized by such board to make an investigation in its behalf;
         4. A peer review committee of a society or association of physicians or registered professional nurses whose membership includes not less than one-third of the medical doctors or doctors of osteopathy or registered professional nurses licensed to practice in this state and only if the physician or registered professional nurse whose services are the subject of review is a member of such society or association and said physician or registered professional nurse has signed a release authorizing such review;
         5. A committee, board, agency, government official, or court to which appeal may be taken from any of the organizations or groups listed in this subparagraph (III);

      4. A physician or any health-care provider who was in consultation with the physician who may have acquired any information or records relating to the services performed by the physician specified in subparagraph (III) of this paragraph (d);
      5. A registered professional nurse who is subject to any claim or the nurse's employer subject to any claim therein based on a nurse's actions, which claims are required to be defended and indemnified by any insurance company or trust obligated by contract;
      6. A physician, surgeon, or registered professional nurse who is being examined as a witness as a result of his consultation for medical care or genetic counseling or screening pursuant to section 13-64-502 in connection with a civil action to which section 13-64-502 applies.

   5. A public officer shall not be examined as to communications made to him in official confidence, when the public interests, in the judgment of the court, would suffer by the disclosure.
   6. 1. A certified public accountant shall not be examined without the consent of his or her client as to any communication made by the client to him or her in person or through the media of books of account and financial records or his or her advice, reports, or working papers given or made thereon in the course of professional employment; nor shall a secretary, stenographer, clerk, or assistant of a certified public accountant be examined without the consent of the client concerned concerning any fact, the knowledge of which he or she has acquired in such capacity. (f) (I) A certified public accountant shall not be examined without the consent of his or her client as to any communication made by the client to him or her in person or through the media of books of account and financial records or his or her advice, reports, or working papers given or made thereon in the course of professional employment; nor shall a secretary, stenographer, clerk, or assistant of a certified public accountant be examined without the consent of the client concerned concerning any fact, the knowledge of which he or she has acquired in such capacity.
      2. No certified public accountant in the employ of the state auditor's office shall be examined as to any communication made in the course of professional service to the legislative audit committee either in person or through the media of books of account and financial records or advice, reports, or working papers given or made thereon; nor shall a secretary, clerk, or assistant of a certified public accountant who is in the employ of the state auditor's office be examined concerning any fact, the knowledge of which such secretary, clerk, or assistant acquired in such capacity, unless such information has been made open to public inspection by a majority vote of the members of the legislative audit committee.
      3. (A) Subpoena powers for public entity audit and reviews. Subparagraph (I) of this paragraph (f) shall not apply to the Colorado state board of accountancy, nor to a person or group authorized by the board to make an investigation on the board's behalf, concerning an accountant's reports, working papers, or advice to a public entity that relate to audit or review accounting activities of the certified public accountant or certified public accounting firm being investigated.
      4. (A) Subpoena powers for private entity audit and reviews. Subparagraph (I) of this paragraph (f) shall not apply to the Colorado state board of accountancy, nor to a person or group authorized by the board to make an investigation on the board's behalf, concerning an accountant's reports or working papers of a private entity that is not publicly traded and relate to audit or review attest activities of the certified public accountant or certified public accounting firm being investigated. This subparagraph (IV) shall not be construed to authorize the Colorado state board of accountancy or its agent to subpoena or examine income tax returns.
      5. Disclosure of information under subsection (1)(f)(III) or (1)(f)(IV) of this section shall not waive or otherwise limit the confidentiality and privilege of such information nor relieve any certified public accountant, any certified public accounting firm, the Colorado state board of accountancy, or a person or group authorized by such board of the obligation of confidentiality. Disclosure that is not in good faith of such information shall subject the board, a member thereof, or its agent to civil liability pursuant to section 12-100-104 (4).
      6. Any certified public accountant or certified public accounting firm that receives a subpoena for reports or accountant's working papers related to the audit or review attest activities of the accountant or accounting firm pursuant to subparagraph (III) or (IV) of this paragraph (f) shall notify his or her client of the subpoena within three business days after the date of service of the subpoena.
      7. Subparagraph (III) or (IV) of this paragraph (f) shall not operate as a waiver, on behalf of any third party or the certified public accountant or certified public accounting firm, of due process remedies available under the “State Administrative Procedure Act”, article 4 of title 24, C.R.S., the open records laws, article 72 of title 24, C.R.S., or any other provision of law.
      8. Prior to the disclosure of information pursuant to subparagraph (III) or (IV) of this paragraph (f), the certified public accountant, certified public accounting firm, or client thereof shall have the opportunity to designate reports or working papers related to the attest function under subpoena as privileged and confidential pursuant to this paragraph (f) or the open records laws, article 72 of title 24, C.R.S., in order to assure that the report or working papers shall not be disseminated or otherwise republished and shall only be reviewed pursuant to limited authority granted to the board under subparagraph (III) or (IV) of this paragraph (f).
      9. No later than thirty days after the board of accountancy completes the investigation for which records or working papers are subpoenaed pursuant to subparagraph (III) or (IV) of this paragraph (f), the board shall return all original records, working papers, or copies thereof to the certified public accountant or certified public accounting firm.
      10. Nothing in subparagraphs (III) and (IV) of this paragraph (f) shall cause the accountant-client privilege to be waived as to customer financial and account information of depository institutions or to the regulatory examinations and other regulatory information relating to depository institutions.
      11. For the purposes of subparagraphs (III) to (X) of this paragraph (f), “entity” shall have the same meaning as in section 7-90-102 (20), C.R.S.

   7. A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, an unlicensed psychotherapist, a certified addiction counselor, a psychologist candidate registered pursuant to section 12-245-304 (3), a marriage and family therapist candidate registered pursuant to section 12-245-504 (4), a licensed professional counselor candidate registered pursuant to section 12-245-604 (4), or a person described in section 12-245-217 shall not be examined without the consent of the licensee's, certificate holder's, registrant's, candidate's, or person's client as to any communication made by the client to the licensee, certificate holder, registrant, candidate, or person or the licensee's, certificate holder's, registrant's, candidate's, or person's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, an unlicensed psychotherapist, a certified addiction counselor, a psychologist candidate registered pursuant to section 12-245-304 (3), a marriage and family therapist candidate registered pursuant to section 12-245-504 (4), a licensed professional counselor candidate registered pursuant to section 12-245-604 (4), or a person described in section 12-245-217 be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.
   8. A qualified interpreter, pursuant to section 13-90-202, who is called upon to testify concerning the communications he interpreted between a hearing-impaired person and another person, one of whom holds a privilege pursuant to this subsection (1), shall not be examined without the written consent of the person who holds the privilege.
   9. A confidential intermediary, as defined in section 19-1-103, must not be examined as to communications made to the intermediary in official confidence when the public interests, in the judgment of the court, would suffer by the disclosure of such communications.
   10. 1. 1. If any person or entity performs a voluntary self-evaluation, the person, any officer or employee of the entity or person involved with the voluntary self-evaluation, if a specific responsibility of such employee was the performance of or participation in the voluntary self-evaluation or the preparation of the environmental audit report, or any consultant who is hired for the purpose of performing the voluntary self-evaluation for the person or entity may not be examined as to the voluntary self-evaluation or environmental audit report without the consent of the person or entity or unless ordered to do so by any court of record, or, pursuant to section 24-4-105, C.R.S., by an administrative law judge. For the purposes of this paragraph (j), “voluntary self-evaluation” and “environmental audit report” have the meanings provided for the terms in section 13-25-126.5 (2). (j) (I) (A) If any person or entity performs a voluntary self-evaluation, the person, any officer or employee of the entity or person involved with the voluntary self-evaluation, if a specific responsibility of such employee was the performance of or participation in the voluntary self-evaluation or the preparation of the environmental audit report, or any consultant who is hired for the purpose of performing the voluntary self-evaluation for the person or entity may not be examined as to the voluntary self-evaluation or environmental audit report without the consent of the person or entity or unless ordered to do so by any court of record, or, pursuant to section 24-4-105, C.R.S., by an administrative law judge. For the purposes of this paragraph (j), “voluntary self-evaluation” and “environmental audit report” have the meanings provided for the terms in section 13-25-126.5 (2).
          2. This paragraph (j) does not apply if the voluntary self-evaluation is subject to an exception allowing admission into evidence or discovery pursuant to the provisions of section 13-25-126.5 (3) or (4).

       2. This paragraph (j) applies to voluntary self-evaluations that are performed on or after June 1, 1994.

   11. 1. A victim's advocate shall not be examined as to any communication made to such victim's advocate by a victim of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., or a victim of sexual assault, as described in sections 18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the media of written records or reports without the consent of the victim. (k) (I) A victim's advocate shall not be examined as to any communication made to such victim's advocate by a victim of domestic violence, as defined in section 18-6-800.3 (1), C.R.S., or a victim of sexual assault, as described in sections 18-3-401 to 18-3-405.5, 18-6-301, and 18-6-302, C.R.S., in person or through the media of written records or reports without the consent of the victim.
       2. For purposes of this paragraph (k), a “victim's advocate” means a person at a battered women's shelter or rape crisis organization or a comparable community-based advocacy program for victims of domestic violence or sexual assault and does not include an advocate employed by any law enforcement agency:
          1. Whose primary function is to render advice, counsel, or assist victims of domestic or family violence or sexual assault; and
          2. Who has undergone not less than fifteen hours of training as a victim's advocate or, with respect to an advocate who assists victims of sexual assault, not less than thirty hours of training as a sexual assault victim's advocate; and
          3. Who supervises employees of the program, administers the program, or works under the direction of a supervisor of the program.

   12. 1. A parent may not be examined as to any communication made in confidence by the parent's minor child to the parent when the minor child and the parent were in the presence of an attorney representing the minor child, or in the presence of a physician who has a confidential relationship with the minor child pursuant to paragraph (d) of this subsection (1), or in the presence of a mental health professional who has a confidential relationship with the minor child pursuant to paragraph (g) of this subsection (1), or in the presence of a clergy member, minister, priest, or rabbi who has a confidential relationship with the minor child pursuant to paragraph (c) of this subsection The exception may be waived by express consent to disclosure by the minor child who made the communication or by failure of the minor child to object when the contents of the communication are demanded. This exception does not relieve any physician, mental health professional, or clergy member, minister, priest, or rabbi from any statutory reporting requirements. (l) (I) A parent may not be examined as to any communication made in confidence by the parent's minor child to the parent when the minor child and the parent were in the presence of an attorney representing the minor child, or in the presence of a physician who has a confidential relationship with the minor child pursuant to paragraph (d) of this subsection (1), or in the presence of a mental health professional who has a confidential relationship with the minor child pursuant to paragraph (g) of this subsection (1), or in the presence of a clergy member, minister, priest, or rabbi who has a confidential relationship with the minor child pursuant to paragraph (c) of this subsection The exception may be waived by express consent to disclosure by the minor child who made the communication or by failure of the minor child to object when the contents of the communication are demanded. This exception does not relieve any physician, mental health professional, or clergy member, minister, priest, or rabbi from any statutory reporting requirements.
       2. This exception does not apply to:
          1. Any civil action or proceeding by one parent against the other or by a parent or minor child against the other;
          2. Any proceeding to commit either the minor child or parent, pursuant to title 27, C.R.S., to whom the communication was made;
          3. Any guardianship or conservatorship action to place the person or property or both under the control of another because of an alleged mental or physical condition of the minor child or the minor child's parent;
          4. Any criminal action or proceeding in which a minor's parent is charged with a crime committed against the communicating minor child, the parent's spouse, the parent's partner in a civil union, or a minor child of either the parent or the parent's spouse or the parent's partner in a civil union;
          5. Any action or proceeding for termination of the parent-child legal relationship;
          6. Any action or proceeding for voluntary relinquishment of the parent-child legal relationship; or
          7. Any action or proceeding on a petition alleging child abuse, dependency or neglect, abandonment, or non-support by a parent.

       3. For purposes of this paragraph (l):
          1. “Minor child” means any person under the age of eighteen years.
          2. “Parent” includes the legal guardian or legal custodian of a minor child as well as adoptive parents.
          3. “Partner in a civil union” means a person who has entered into a civil union in accordance with the requirements of article 15 of title 14, C.R.S.

   13. 1. A law enforcement or firefighter peer support team member shall not be examined without the consent of the person to whom peer support services have been provided as to any communication made by the person to the peer support team member under the circumstances described in subsection (1)(m)(III) of this section; nor shall a recipient of peer support services be examined as to any such communication without the recipient's consent. (m) (I) A law enforcement or firefighter peer support team member shall not be examined without the consent of the person to whom peer support services have been provided as to any communication made by the person to the peer support team member under the circumstances described in subsection (1)(m)(III) of this section; nor shall a recipient of peer support services be examined as to any such communication without the recipient's consent.

          (I.5) An emergency medical service provider or rescue unit peer support team member shall not be examined without the consent of the person to whom peer support services have been provided as to any communication made by the person to the peer support team member under the circumstances described in subsection (1)(m)(III) of this section; nor shall a recipient of peer support services be examined as to any such communication without the recipient's consent.

       2. For purposes of this paragraph (m):
          1. “Communication” means an oral statement, written statement, note, record, report, or document made during, or arising out of, a meeting with a peer support team member.

             (A.5) “Emergency medical service provider or rescue unit peer support team member” means an emergency medical service provider, as defined in section 25-3.5-103 (8), C.R.S., a regular or volunteer member of a rescue unit, as defined in section (11) , C.R.S., or other person who has been trained in peer support skills and who is officially designated by the supervisor of an emergency medical service agency as defined in section 25-3.5-103 (11.5), C.R.S., or a chief of a rescue unit as a member of an emergency medical service provider's peer support team or rescue unit's peer support team.

          2. “Law enforcement or firefighter peer support team member” means a peace officer, civilian employee, or volunteer member of a law enforcement agency or a regular or volunteer member of a fire department or other person who has been trained in peer support skills and who is officially designated by a police chief, the chief of the Colorado state patrol, a sheriff, or a fire chief as a member of a law enforcement agency's peer support team or a fire department's peer support team.

       3. The provisions of this subsection (1)(m) apply only to communications made during interactions conducted by a peer support team member:
          1. Acting in the person's official capacity as a law enforcement or firefighter peer support team member or an emergency medical service provider or rescue unit peer support team member; and
          2. Functioning within the written peer support guidelines that are in effect for the person's respective law enforcement agency, fire department, emergency medical service agency, or rescue unit.

       4. This subsection (1)(m) does not apply in cases in which:
          1. A law enforcement or firefighter peer support team member or emergency medical service provider or rescue unit peer support team member was a witness or a party to an incident which prompted the delivery of peer support services;
          2. Information received by a peer support team member is indicative of actual or suspected child abuse, as described in section 18-6-401; actual or suspected child neglect, as described in section 19-3-102; or actual or suspected crimes against at-risk persons, as described in section 18-6.5-103;
          3. Due to intoxication by alcohol, being under the influence of drugs, or incapacitation by substances as described in section 27-81-111, the person receiving peer support is a clear and immediate danger to the person's self or others;
          4. There is reasonable cause to believe that the person receiving peer support has a mental health disorder and, due to the mental health disorder, is an imminent threat to himself or herself or others or is gravely disabled as defined in section 27-65-102; or
          5. There is information indicative of any criminal conduct.

2. The medical records produced for use in the review provided for in subparagraphs (III), (IV), and (V) of paragraph (d) of subsection (1) of this section shall not become public records by virtue of such use. The identity of any patient whose records are so reviewed shall not be disclosed to any person not directly involved in such review process, and procedures shall be adopted by the Colorado medical board or state board of nursing to ensure that the identity of the patient shall be concealed during the review process itself.
3. The provisions of subsection (1)(d) of this section shall not apply to physicians required to make reports in accordance with section 12-240-139. In addition, the provisions of subsections (1)(d) and (1)(g) of this section shall not apply to physicians or psychologists eligible to testify concerning a criminal defendant's mental condition pursuant to section 16-8-103.6. Physicians and psychologists testifying concerning a criminal defendant's mental condition pursuant to section 16-8-103.6 do not fall under the attorney-client privilege in subsection (1)(b) of this section.

History. Source: L. 1883: P. 290, § 3. G.S. § 3649. R.S. 08: § 7274. L. 11: P. 679, § 1. C.L. § 6563. L. 29: P. 642, § 1. CSA: C. 177, § 9. CRS 53: § 153-1-7. L. 61: P. 603, § 16. C.R.S. 1963: § 154-1-7. L. 67: P. 809, § 12. L. 76: (1)(d) R&RE and (2) added, pp. 525, 526, §§ 2, 3, effective July 1. L. 81: (1)(b) amended, p. 900, § 1, effective May 26. L. 83: (1)(d) and (2) amended, p. 636, § 1, effective May 25; (1)(a) amended, p. 663, § 1, effective July 1. L. 84: (1)(g) amended, p. 1118, § 8, effective June 7. L. 87: (1)(h) added, p. 572, § 2, effective April 23; (3) added, p. 623, § 5, effective July 1. L. 88: (1)(a) and (1)(c) amended, pp. 708, 630, §§ 3, 1, effective July 1. L. 89: (1)(i) added, p. 943, § 2, effective March 27; (1)(d)(VI) added, p. 763, § 5, effective July 1. L. 93: (1)(f) amended, p. 15, § 3, effective March 2; (1)(g) amended, p. 363, § 1, effective April 12. L. 94: (1)(j) added, p. 1869, § 2, effective June 1; (1)(k) added, p. 2031, § 7, effective July 1. L. 95: (1)(k) amended, p. 948, § 4, effective July 1; (3) amended, p. 1249, § 2, effective July 1. L. 96: (1)(a)(II) amended, p. 1842, § 6, effective July 1. L. 98: (1)(g) amended, p. 1158, § 29, effective July 1; (1)(i) amended, p. 819, § 16, effective August 5. L. 99: (1)(j)(II) amended, p. 301, § 2, effective April 14. L. 2000: (1)(a)(I) amended, p. 1537, § 3, effective July 1. L. 2002: (1)(c) and (1)(l)(I) amended, pp. 1146, 1145, §§ 3, 2, effective June 3; (1)(l) added, p. 399, § 1, effective August 7; (1)(a)(II) amended, p. 1489, § 127, effective October 1. L. 2003: (1)(f) amended, p. 1391, § 1, effective August 6. L. 2004: (1)(g) amended, p. 919, § 25, effective July 1. L. 2005: (1)(m) added, p. 89, § 1, effective July 1. L. 2006: (1)(m)(IV)(D) amended, p. 1396, § 38, effective August 7. L. 2010: (1)(m)(IV)(C) and (1)(m)(IV)(D) amended,(SB 10-175), ch. 188, p. 782, § 18, effective April 29; IP(1)(d), (1)(d)(III)(C), and (2) amended,(HB 10-1260), ch. 403, p. 1985, § 72, effective July 1. L. 2011: (1)(g) amended,(SB 11-187), ch. 285, p. 1327, § 68, effective July 1. L. 2013: (1)(a.5) and (1)(l)(III)(C) added and (1)(l)(II)(D) amended,(SB 13-011), ch. 49, p. 161, § 10, effective May 1; (1)(g) amended,(HB 13-1104), ch. 77, p. 248, § 4, effective August 7; (1)(m)(I.5) and (1)(m)(II)(A.5) added and (1)(m)(III)(A), (1)(m)(III)(B), and (1)(m)(IV)(A) amended,(SB 13-038), ch. 67, p. 220, § 1, effective August 7. L. 2014: (1)(a)(II) and (1)(a.5)(II) amended,(SB 14-163), ch. 391, p. 1968, § 2, effective June 6. L. 2017: (1)(m)(I), (1)(m)(I.5), IP(1)(m)(III), IP(1)(m)(IV), and (1)(m)(IV)(B) amended,(HB 17-1032), ch. 35, p. 106, § 1, effective March 16; IP(1)(m)(IV) and (1)(m)(IV)(D) amended,(SB 17-242), ch. 263, p. 1294, § 111, effective May 25. L. 2019: (1)(f)(IV)(B), (1)(f)(V), (1)(g), and (3) amended,(HB 19-1172), ch. 136, p. 1668, § 78, effective October 1. L. 2020: (1)(m)(IV)(C) amended,(SB 20-007), ch. 286, p. 1415, § 47, effective July 13; (1)(g) amended,(HB 20-1206), ch. 304, p. 1549, § 62, effective July 14. L. 2021: IP(1) and (1)(i) amended,(SB 21-059), ch. 136, p. 711, § 17, effective October 1. History. Source: L. 1883: P. 290, § 3. G.S. § 3649. R.S. 08: § 7274. L. 11: P. 679, § 1. C.L. § 6563. L. 29: P. 642, § 1. CSA: C. 177, § 9. CRS 53: § 153-1-7. L. 61: P. 603, § 16. C.R.S. 1963: § 154-1-7. L. 67: P. 809, § 12. L. 76: (1)(d) R&RE and (2) added, pp. 525, 526, §§ 2, 3, effective July 1. L. 81: (1)(b) amended, p. 900, § 1, effective May 26. L. 83: (1)(d) and (2) amended, p. 636, § 1, effective May 25; (1)(a) amended, p. 663, § 1, effective July 1. L. 84: (1)(g) amended, p. 1118, § 8, effective June 7. L. 87: (1)(h) added, p. 572, § 2, effective April 23; (3) added, p. 623, § 5, effective July 1. L. 88: (1)(a) and (1)(c) amended, pp. 708, 630, §§ 3, 1, effective July 1. L. 89: (1)(i) added, p. 943, § 2, effective March 27; (1)(d)(VI) added, p. 763, § 5, effective July 1. L. 93: (1)(f) amended, p. 15, § 3, effective March 2; (1)(g) amended, p. 363, § 1, effective April 12. L. 94: (1)(j) added, p. 1869, § 2, effective June 1; (1)(k) added, p. 2031, § 7, effective July 1. L. 95: (1)(k) amended, p. 948, § 4, effective July 1; (3) amended, p. 1249, § 2, effective July 1. L. 96: (1)(a)(II) amended, p. 1842, § 6, effective July 1. L. 98: (1)(g) amended, p. 1158, § 29, effective July 1; (1)(i) amended, p. 819, § 16, effective August 5. L. 99: (1)(j)(II) amended, p. 301, § 2, effective April 14. L. 2000: (1)(a)(I) amended, p. 1537, § 3, effective July 1. L. 2002: (1)(c) and (1)(l)(I) amended, pp. 1146, 1145, §§ 3, 2, effective June 3; (1)(l) added, p. 399, § 1, effective August 7; (1)(a)(II) amended, p. 1489, § 127, effective October 1. L. 2003: (1)(f) amended, p. 1391, § 1, effective August 6. L. 2004: (1)(g) amended, p. 919, § 25, effective July 1. L. 2005: (1)(m) added, p. 89, § 1, effective July 1. L. 2006: (1)(m)(IV)(D) amended, p. 1396, § 38, effective August 7. L. 2010: (1)(m)(IV)(C) and (1)(m)(IV)(D) amended,(SB 10-175), ch. 188, p. 782, § 18, effective April 29; IP(1)(d), (1)(d)(III)(C), and (2) amended,(HB 10-1260), ch. 403, p. 1985, § 72, effective July 1. L. 2011: (1)(g) amended,(SB 11-187), ch. 285, p. 1327, § 68, effective July 1. L. 2013: (1)(a.5) and (1)(l)(III)(C) added and (1)(l)(II)(D) amended,(SB 13-011), ch. 49, p. 161, § 10, effective May 1; (1)(g) amended,(HB 13-1104), ch. 77, p. 248, § 4, effective August 7; (1)(m)(I.5) and (1)(m)(II)(A.5) added and (1)(m)(III)(A), (1)(m)(III)(B), and (1)(m)(IV)(A) amended,(SB 13-038), ch. 67, p. 220, § 1, effective August 7. L. 2014: (1)(a)(II) and (1)(a.5)(II) amended,(SB 14-163), ch. 391, p. 1968, § 2, effective June 6. L. 2017: (1)(m)(I), (1)(m)(I.5), IP(1)(m)(III), IP(1)(m)(IV), and (1)(m)(IV)(B) amended,(HB 17-1032), ch. 35, p. 106, § 1, effective March 16; IP(1)(m)(IV) and (1)(m)(IV)(D) amended,(SB 17-242), ch. 263, p. 1294, § 111, effective May 25. L. 2019: (1)(f)(IV)(B), (1)(f)(V), (1)(g), and (3) amended,(HB 19-1172), ch. 136, p. 1668, § 78, effective October 1. L. 2020: (1)(m)(IV)(C) amended,(SB 20-007), ch. 286, p. 1415, § 47, effective July 13; (1)(g) amended,(HB 20-1206), ch. 304, p. 1549, § 62, effective July 14. L. 2021: IP(1) and (1)(i) amended,(SB 21-059), ch. 136, p. 711, § 17, effective October 1.

Cross references:

1. For circumstances in which the statutory privilege will not be allowed, see §§ 18-3-102 (4), 18-3-411 (5), 18-6-401 (3), 18-6-401.1, and 18-6.5-104.
2. For the legislative declaration contained in the 2002 act amending subsection (1)(a)(II), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.
3. For statutory provisions addressing the licensure of persons to practice law or for the special admission of counselors from other states, see article 93 of title 13; for statutory provisions addressing the licensure of persons to practice medicine, see article 240 of title 12; for statutory provisions addressing the licensure of persons to practice certified public accounting, see article 100 of title 12; for statutory provisions addressing the licensure of persons to practice psychology, social work, marriage and family therapy, and professional counseling, see article 245 of title 12; for statutory provisions addressing unlicensed psychotherapy, see part 7 of article 245 of title 12 and § 22-60.5-210.

ANNOTATION

Analysis

• I. GENERAL CONSIDERATION.
• II. SPOUSE.
  • A. In General.
  • B. Crime by One Spouse Against the Other.

• III. ATTORNEY.
  • A. In General.
  • B. “Crime-Fraud” Exception.

• IV. CLERGY.
• V. PHYSICIAN.
• VI. PUBLIC OFFICER.
• VII. ACCOUNTANT.
• VIII. PSYCHIATRIST.
• IX. PSYCHOLOGIST.
• X. VICTIM'S ADVOCATE.

I. GENERAL CONSIDERATION.

Law reviews. For article, “One Year Review of Domestic Relations”, see 35 Dicta 36 (1958). For article, “The Physician-Patient Privilege in Colorado”, see 37 U. Colo. L. Rev. 349 (1965). For note on privileged communications in Colorado, see 37 U. Colo. L. Rev. 388 (1965). For comment, “Reporter's Privilege: Pankratz v. District Court”, see 58 Den. L.J. 681 (1981). 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, “The Authorization to Release Medical Information Form: Its Genesis and Usage”, see 11 Colo. Law. 1179 (1982). For article, “Attorney-Client Privilege -- the Colorado Law”, see 12 Colo. Law. 766 (1983). For comment, “Colorado's Approach to Searches and Seizures in Law Offices”, see 54 U. Colo. L. Rev. 571 (1983). For article, “Attorney Disclosure: The Model Rules in the Corporate/Securities Area”, see 12 Colo. Law. 1975 (1983). For article, “Incest and Ethics: Confidentiality's Severest Test”, see 61 Den. L.J. 619 (1984). For case note, “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, “Ethical Problems in Bankruptcy”, see 14 Colo. Law. 2147 (1985). For comment, “Limiting Prosecutorial Discovery Under the Sixth Amendment Right to Effective Assistance of Counsel: Hutchinson v. People”, see 66 Den. U. L. Rev. 123 (1988). For article, “A Trial Lawyer's View of Attorney's Fees Awards”, see 17 Colo. Law. 465 (1988). For article, “Suggested Modifications to the Durable Power of Attorney Form”, see 17 Colo. Law. 2135 (1988). For article, “Colorado's New Spousal Privilege”, see 18 Colo. Law. 451 (1989). For article, “Divorce and Family Mediation: Must it be Confidential?”, see 18 Colo. Law. 925 (1989). For comment, “Attorney-Client Confidences: Punishing the Innocent”, see 61 U. Colo. L. Rev. 185 (1990). For article, “The Use of Mental Health Treatment Records to Impeach Credibility”, see 23 Colo. Law. 839 (1994). For article, “Admissibility of Mental and Physical Health Records and Testimony”, see 29 Colo. Law. 61 (Dec. 2000). For article, “Beyond the Client: The Protection of the Corporate Attorney-Client Privilege”, see 35 Colo. Law. 31 (June 2006). For article, “New CRCP 45 Impacts Medical Records Subpoenas and Tracks Federal Rule”, see 42 Colo. Law. 23 (Jan. 2013). For article, “Colorado Civil Union Act”, see 42 Colo. Law. 91 (July 2013). For article, “The Changes to Colorado and Federal Civil Rule 45”, see 42 Colo. Law. 57 (Dec. 2013). For article, “Managing Risks When Working with Experts and Consultants”, see 46 Colo. Law. 61 (June 2017). For article, “Attorney-Client Privilege and the Work Product Doctrine: Is Confidentiality Lost in Email?”, see 46 Colo. Law. 32 (Nov. 2017). For article, “Trial Counsel's Continued Duty of Confidentiality in Postconviction Proceedings”, see 48 Colo. Law. 32 (Dec. 2019).

Separate classifications of persons are included under the terms of this section and in each classification it is provided that such persons “shall not be examined” as a witness. Weck v. District Court, 158 Colo. 521 , 408 P.2d 987 (1965).

The privilege is inviolable. The privilege created by this section for the benefit of the persons who may seek their protection, is equally inviolable whether created by statute or constitutional provision. Weck v. District Court, 158 Colo. 521 , 408 P.2d 987 (1965).

Testimonial exclusionary rules and privileges contravene fundamental principle that the public has a right to every man's evidence. Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980).

Thus, testimonial exclusionary rules must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980).

Privileges are strictly construed and the burden of proving that a communication is protected by a privilege is upon the person asserting the privilege. People v. Agado, 964 P.2d 565 (Colo. App. 1998).

Applicable in criminal cases. There is nothing in the language of this section which provides or even suggests that the privilege it affords does not apply in criminal cases. People v. Reynolds, 195 Colo. 386 , 578 P.2d 647 (1978).

Psychotherapist-patient privilege does not apply to documents required for licensure. Privilege applies to courtroom testimonials, not to documentation submitted by a treatment facility to the licensing agency as required by rules. Adolescent & Family Inst. v. Dept. of Human Servs., 2013 COA 44 , 316 P.3d 4.

No privilege for financial reports made to department of revenue. There is no testimonial privilege protecting against the disclosure of financial reports made to the department of revenue comparable to the privileges for other certain confidential communications made under this section. Losavio v. Robb, 195 Colo. 533 , 579 P.2d 1152 (1978).

No privilege for a statement defendant made to parents following murder. Court declines to adopt parent-child privilege. People v. Agado, 964 P.2d 565 (Colo. App. 1998).

Pleading held implied waiver of privilege. When the privilege holder pleads a physical or mental condition as the basis of a claim or as an affirmative defense, the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition. The privilege holder under these circumstances has utilized his physical or mental condition as the predicate for some form of judicial relief, and his legal position as to that condition is irreconcilable with a claim of confidentiality. Clark v. District Court, 668 P.2d 3 (Colo. 1983); Rohda v. Franklin Life Ins. Co., 689 F. Supp. 1034 (D. Colo. 1988 ).

Only the privilege holder may impliedly waive the physician-patient privilege. The proper inquiry is whether the privilege holder has injected his or her physical or mental condition into the case as the basis of a claim or an affirmative defense. Denying the opposing party's allegations does not suffice to establish a waiver. Gadeco, LLC v. Grynberg, 2018 CO 22, 415 P.3d 323.

Extent of waiver. Although plaintiff had waived the patient-physician privilege in a civil action against the defendant, she was not a party in the criminal action involving said defendant and did not expressly waive her privilege or impliedly waive her privilege by injecting her mental or physical condition into that case. Rohda v. Franklin Life Ins. Co., 689 F. Supp. 1034 (D. Colo. 1988 ).

Choice of law. Where it is asserted that the law of another state should govern a claim of privilege, Restatement (Second) Conflict of Laws § 139(2) provides an appropriate framework for analysis. People v. Thompson, 950 P.2d 608 (Colo. App. 1997).

No “special” reason exists for applying the law of another state merely because such other state had the most significant relationship with the communication, regardless of the interests of the forum state. People v. Thompson, 950 P.2d 608 (Colo. App. 1997).

Applied in People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975); People v. Rosenthal, 617 P.2d 551 (Colo. 1980); People v. Buhrle, 744 P.2d 747 (Colo. 1987); Colo. Bd. of Nursing v. Bethesda Hosp., 809 P.2d 1051 (Colo. App. 1990); People v. Bachofer, 192 P.3d 454 (Colo. App. 2008).

II. SPOUSE. A. In General.

Section perpetuates the common-law doctrine. Although in federal criminal prosecutions, the witness-spouse alone may invoke the marital privilege, this section perpetuates the common-law doctrine of witness disqualification in the case of non-consensual spousal testimony regardless of its content. People v. Lucero, 707 P.2d 1040 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 747 P.2d 660 (Colo. 1987).

Spousal privilege is not based on a constitutional right. Therefore, subsection (1)(a)(II), which alters the nature of the privilege in certain cases, is constitutional. People v. Thompson, 950 P.2d 608 (Colo. App. 1997).

It was not intended to be declaratory of the common law merely. Dill v. People, 19 Colo. 469 , 36 P. 229, 41 Am. St. R. 254 (1894); Vasquez v. Esquibel, 141 Colo. 5 , 346 P.2d 293 (1959).

In federal prosecutions, witness's spouse alone has privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying. Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980).

The purpose of this provision is primarily the protection of the home. To permit the prohibition to work a gross injustice to an injured wife by allowing its aid to be invoked by an outsider who has intermeddled in family affairs when the husband, as here, does not raise the question, would be to use the statute to defeat the very purpose of its enactment. McAllister v. McAllister, 72 Colo. 28 , 209 P. 788 (1922).

And the sanctity and tranquility of the marital relationship. The reason for the rule at common law disqualifying the wife is to protect the sanctity and tranquility of the marital relationship. Archina v. People, 135 Colo. 8 , 307 P.2d 1083 (1957); Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo. 1986).

Thus, ostensible wives are competent to testify. Archina v. People, 135 Colo. 8 , 307 P.2d 1083 (1957).

For living together, whatever their intentions for the future, is not enough; in order to invoke this section, there must be a valid contract of marriage in existence at the time the testimony is offered. Archina v. People, 135 Colo. 8 , 307 P.2d 1083 (1957); Lewis v. People, 174 Colo. 334 , 483 P.2d 949 (1971).

Where witness's uncontradicted testimony showed witness's and defendant's mutual consent to be married and their open assumption of the marital relationship, such evidence establishes the existence of a common-law marriage. As such, the marital privilege could be asserted and the trial court erred by admitting testimony which should have been excluded on the basis of the defendant's assertion of the privilege. People v. Lucero, 707 P.2d 1040 (Colo. App. 1985). See In re Hogsett, 2021 CO 1, 478 P.3d 713 (refining test for establishing common law marriage first articulated in People v. Lucero to reflect changed circumstances since that decision, including the recognition of same-sex marriage); In re Estate of Yudkin, 2021 CO 2, 478 P.3d 732 (applying updated common law marriage test and emphasizing that no one factor is dispositive, but depends on the totality of the circumstances); In re LaFleur, 2021 CO 3, 479 P.3d 869 (recognizing same-sex common law marriages predating Colorado's recognition of formal same-sex marriages).

A decree granting dissolution of a marriage is final when entered and dissolves the marital status of the parties even if the order is not treated as final for the purpose of appellate review. People v. Inman, 950 P.2d 640 (Colo. App. 1997).

And this section applies only to matters occurring during the time the parties were married. There is no privilege for statements made by an intended spouse before the marriage, nor for statements made by a former spouse after dissolution of the marriage. Therefore, defendant could not object to testimony by his ex-wife concerning his words and deeds before they were married or after the entry of the decree dissolving their marriage, notwithstanding that final orders were not issued immediately. People v. Inman, 950 P.2d 640 (Colo. App. 1997).

This section contemplates the existence of a valid marriage. Where both parties to a purported common-law marriage admit prior marriages which to their knowledge remain undissolved, such evidence is competent to support the trial court's finding that no marriage exists for the purpose of invoking the privilege. People v. Maes, 43 Colo. App. 426, 609 P.2d 1105 (1979).

This section contains the only limitation on the ground of public policy. This section providing that the wife shall not be examined for or against her husband without his consent and vice versa, contains the only limitation on the ground of public policy, and is controlling on the subject, and not the common law. White v. Bower, 56 Colo. 575 , 136 P. 1053 (1913).

It prohibits merely the examination of either husband or wife as to any communication made by one to the other during the marriage. To extend this prohibition to the exclusion of communications themselves, is to give it a liberal construction, and thus prevent the ascertainment of the truth as to a material issue in the case. Keeler v. Russum, 68 Colo. 196 , 189 P. 255 (1920).

This section should be so construed as to work no injustice, if susceptible of such construction. Keeler v. Russum, 68 Colo. 196 , 189 P. 255 (1920).

The marital communications privilege is personal to the spouses and may not be invoked by a third party. W. Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570 (Colo. App. 2006).

The authorities are to the effect that this section should be strictly construed, because the tendency of the privilege is to prevent the full disclosure of the truth. Keeler v. Russum, 68 Colo. 196 , 189 P. 255 (1920); Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo. 1986).

It is error to compel both husband and wife to testify, against their objection, in a cause seeking to impeach a conveyance by one to the other, as fraudulent against creditors. Jasper v. Bicknell, 68 Colo. 308 , 191 P. 115 (1920).

Once husband testifies, wife is subject to questioning. In an action against husband and wife for the possession of real estate, the husband by answer, disclaimed any interest in the property. On the trial the court refused plaintiff permission to cross-examine the wife under the statute, without the consent of her husband, because of this section. This was error. Horn v. Hurwitz, 76 Colo. 389 , 231 P. 1116 (1925).

Unauthorized disclosure by the husband does not waive the wife's privilege. Objecting to a copy of the letter is not a waiver of the wife's privilege. Dalton v. People, 68 Colo. 44 , 189 P. 37 (1920).

Defendant's remarks to wife in courtroom held privileged. A municipal judge had no authority, without the consent of the defendant or his wife, to order him to reveal what he had told her. Thrap v. People, 192 Colo. 341 , 558 P.2d 576 (1977).

Where, although others were in the courtroom, there was no evidence that anyone else overheard the content of the defendant's comment to his wife, absent such evidence, which might have shown waiver of the privilege, the circumstances justified a reasonable expectation of privacy in this husband-wife communication. Thrap v. People, 192 Colo. 341 , 558 P.2d 576 (1977).

Marital privilege extends to in-court testimony, as well as depositions, interrogatories, requests for admissions, and other forms of testimonial discovery. Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo. 1986).

Discovery relating to party's liability held not privileged despite consequent unfavorable disclosure of facts relating to spouse's liability. Where discovery requests do not relate solely to a spouse's liability, a party may be compelled to comply with all such proper requests for discovery which pertain to that party's liability, even though some responses may be adverse to the party's spouse. Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo. 1986).

Discovery must be determined on an ad hoc basis. Where the marital privilege is in issue, discovery must be determined on an ad hoc basis. Petro-Lewis Corp. v. District Court, 727 P.2d 41 (Colo. 1986).

Marital privilege does not extend to communications made in the presence of a third party. South Carolina Ins. Co. v. Fisher, 698 P.2d 1369 (Colo. App. 1984).

Spousal privilege does not extend to communications made for the purpose of aiding the commission of a future crime or continuing a present continuing crime. Statements made during an ongoing pattern of criminal activity are not subject to spousal privilege. People v. James, 40 P.3d 36 (Colo. App. 2001).

It seems clear that this section is not applicable to a mental health proceeding, and it cannot be said that the wife was testifying against the husband as prohibited by that section. An action in the county court to inquire into the mental health of a party can best be described as a special statutory proceeding, and is neither a criminal case nor a civil action. Sabon v. People, 142 Colo. 323 , 350 P.2d 576 (1960).

A husband may testify without the consent of the wife in a civil action by one against the other. Boyd v. McElroy, 105 Colo. 527 , 100 P.2d 624 (1940).

State agent's testimony on interspousal conversation not violative of section. Testimony given by an agent of the state who lawfully monitored a conversation between husband and wife in the visiting room of a jail does not violate this section. People v. Blehm, 44 Colo. App. 472, 623 P.2d 411 (1980).

For history of marital communications privilege and rule of spousal disqualification as a witness, see Trammel v. United States, 445 U.S. 40, 100 S. Ct. 906, 63 L. Ed. 2d 186 (1980).

Mother's invocation of privilege prohibited non-custodial father from calling mother's current spouse as a witness during a custody modification hearing in regard to the mother's care and treatment of her child. In re Bozarth, 779 P.2d 1346 (Colo. 1989).

Permitting commentary on a defendant's invocation of the privilege is no less damaging to the privilege than allowing remarks alluding to an accused's invocation of the fifth amendment. People v. Harris, 729 P.2d 1000 (Colo. App. 1986), aff'd, 762 P.2d 651 (Colo. 1988), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 103 L. Ed. 2d 804 (1988).

The marital privilege may be waived by the acts or omissions of trial counsel. By accusing the defendant's wife of the murders in his opening statement, defense counsel invited a response which necessarily could come only from wife. Cummings v. People, 785 P.2d 920 (Colo. 1990).

Scope of privilege is not limited to confidential communications. Cummings v. People, 785 P.2d 920 (Colo. 1990).

Where the witness-spouse has failed to claim a marital privilege and make a timely objection to his or her testimony, the witness-spouse has waived the privilege, and on appeal, the defendant spouse may not successfully contest the issue pursuant to subsection (1)(a)(II). People v. Wickham, 53 P.3d 691 (Colo. App. 2001).

Counsel for the witness-spouse waived the privilege for her by accepting immunity and allowing her to testify where the defendant was charged with a class one felony and only the witness-spouse was entitled to raise the marital privilege. People v. Wickham, 53 P.3d 691 (Colo. App. 2001).

Spousal disqualification and spousal testimonial privileges were waived by a husband in a personal injury action where the husband called the wife as a witness to testify as to the husband's medical condition and the legitimacy and severity of the husband's injuries. As a result, the wife could be cross-examined about the fraudulent nature of the husband's personal injury claim against his employer. Burlington N. R.R. Co. v. Hood, 802 P.2d 458 (Colo. 1990).

Failure by a husband to assert claim of a spousal testimonial privilege during the deposition of the husband's wife in a personal injury case clearly indicates a waiver of confidentiality and the spouse may be questioned at trial about the fraudulent nature of the husband's personal injury claim. Burlington N. R.R. Co. v. Hood, 802 P.2d 458 (Colo. 1990).

However, where the crime at issue is a class 3 or more serious felony, under subsection (1)(a)(II) it is the witness-spouse who holds the privilege, not the defendant-spouse. People v. Delgado, 890 P.2d 141 (Colo. App. 1994); People v. Thompson, 950 P.2d 608 (Colo. App. 1997).

Portions of written communications between the defendant and his wife were for the purpose of aiding the crime of witness tampering and were held to be admissible and not confidential. People v. Fox, 862 P.2d 1000 (Colo. App. 1993).

B. Crime by One Spouse Against the Other.

This paragraph does not limit the right of the husband or wife to testify to criminal prosecutions for crimes involving personal violence, either actual or constructive; the language is unqualified that the husband or wife may testify against the other “in a criminal action or proceeding for a crime committed by one against the other”. This language is broad enough to include any crime, whether of violence to the person, or other crime committed by the husband or wife directly affecting the other. Dill v. People, 19 Colo. 469 , 36 P. 229 (1894).

“Crime” includes private wrong in public crime. The word crime in that clause of this section which permits the husband or wife to testify against the other in a “criminal action or proceeding for a crime committed by one against the other”, means the private wrong or injury included in such public crime. The word must have such meaning, or the statute is meaningless. Dill v. People, 19 Colo. 469 , 36 P. 229 (1894); Wilkinson v. People, 86 Colo. 406 , 282 P. 257 (1929).

Exception applies for crime committed against spouse and companion. Where the defendant is prosecuted for crimes committed in one criminal episode against his wife and a companion, the statutory exception to the spousal exclusionary rule applies, whether the charges are tried separately or in one proceeding. People v. McGregor, 635 P.2d 912 (Colo. App. 1981).

Spouse may testify as to personal injury inflicted by the other spouse. The rule as to privileged communications does not preclude evidence by one spouse as to a personal injury or violence inflicted on him or her by the other, or as to ill-treatment to which he or she was subjected by the other spouse. Sabon v. People, 142 Colo. 323 , 350 P.2d 576 (1960).

Perjury in divorce proceeding is a crime against spouse. Where a husband is indicted for wilful and corrupt perjury in making a false affidavit in a suit for divorce against his wife, the wife is a competent witness for the state on the trial of such indictment. Dill v. People, 19 Colo. 469 , 36 P. 229 (1894).

As is bigamy. The wife is a competent witness against the husband in a prosecution for bigamy. The offense is a crime against the wife within the meaning of this section. Schell v. People, 65 Colo. 116 , 173 P. 1141 (1918).

And rape. The innocent wife is not precluded by this section from testifying against her husband who stands charged with the crime of rape. She is a competent witness with or without his consent, and her evidence is not within the prohibition of the statute. Wilkinson v. People, 86 Colo. 406 , 282 P. 257 (1929).

The murder by one spouse of the other's child is a crime committed by one spouse against the other and the reason for the rule and protection of this section is annihilated. O'Loughlin v. People, 90 Colo. 368 , 10 P.2d 543 (1932); Archina v. People, 135 Colo. 8 , 307 P.2d 1083 (1957); Balltrip v. People, 157 Colo. 108 , 401 P.2d 259 (1965).

As is the rape of a stepchild. The supreme court has held the spouse to be a competent witness in prosecutions for murder of a stepchild, rape of a stepchild. A prosecution for taking indecent liberties is no less a crime against the wife and the wife was a competent witness to testify against her husband. Jordan v. People, 161 Colo. 54 , 419 P.2d 656 (1966), cert. denied, 386 U.S. 992, 87 S. Ct. 1308, 18 L. Ed. 2d 338 (1967).

As is child abuse. The marital privilege cannot be invoked to exclude a spouse's testimony in a case involving child abuse. People v. Corbett, 656 P.2d 687 (Colo. 1983).

Applied in People v. Unrein, 677 P.2d 951 (Colo. App. 1983).

III. ATTORNEY. A. In General.

Attorney-client privilege originated in common law, and it is now codified in most jurisdictions. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

The purpose of this paragraph is to protect the client against publicity as to admissions or statements made by him to his attorney while the relation of client and attorney exists between them, and is undoubtedly for the benefit of the client. In re Shapter's Estate, 35 Colo. 578 , 85 P. 688 (1906); Sholine v. Harris, 22 Colo. App. 63, 123 P. 330 (1912).

Client protected by not permitting his communications to be disclosed without his consent. The object of this section is to extend to the client the privilege that his communication shall not be disclosed without his consent. Fearnley v. Fearnley, 44 Colo. 417 , 98 P. 819 (1908).

This paragraph protects client and not attorney. Paragraph (b) is intended for the benefit of the client, not the attorney. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894); Mauro v. Tracy, 152 Colo. 106 , 380 P.2d 570 (1963).

The legislative intent behind paragraph (b) was to protect the client and not the attorney. People v. Silvola, 190 Colo. 363 , 547 P.2d 1283, cert. denied, 429 U.S. 886, 97 S. Ct. 238, 50 L. Ed. 2d 167 (1976).

Ensures candid and open attorney-client discussion. The purpose of the attorney-client privilege is to secure the orderly administration of justice by insuring candid and open discussion by the client to the attorney without fear of disclosure. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

The purpose of the privilege is to encourage full and frank communications between attorneys and their clients which promote the administration of justice and preserve the dignity of the individual. People v. Swearingen, 649 P.2d 1102 (Colo. 1982).

Attorney-client privilege is personal with client. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

The attorney-client privilege exists for the personal benefit and protection of the client. A v. District Court, 191 Colo. 10 , 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 96 S. Ct. 3187, 50 L. Ed. 2d 751 (1977); Lanari v. People, 827 P.2d 495 (Colo. 1992).

Hence, the privilege may be waived only by the client. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975); Lanari v. People, 827 P.2d 495 (Colo. 1992).

The attorney-client privilege may be expressly or implicitly waived, but only by the client. A v. District Court, 191 Colo. 10 , 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 96 S. Ct. 3187, 50 L. Ed. 2d 751 (1977).

Attorney-client relationship must exist for privilege to apply. Documents made for an insurance company acting as the agent of an attorney are also covered by the privilege, but the attorney-client relationship between the insurance company and its lawyer must exist at the time the documents are created for the privilege to apply. Kay Labs., Inc. v. District Court, 653 P.2d 721 (Colo. 1982).

Privilege is available to corporations. The privilege exists “without regard to the noncorporate or corporate character of the client”, and, therefore, the attorney-client privilege is available to corporations. A v. District Court, 191 Colo. 10 , 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 96 S. Ct. 3187, 50 L. Ed. 2d 751 (1977).

Attorney-client privilege does not survive a corporation's dissolution if (1) there are no ongoing post-dissolution proceedings, and (2) no one with the authority to invoke or waive the privilege on the corporation's behalf remains. Kissinger & Fellman, PC v. Affiniti Colo., LLC, , 461 P.3d 606 .

Rule of protection ceases if client testifies as to admissions. When the client sees fit to voluntarily appear in a court of justice and testify under oath as to statements or admissions, there is no longer any reason for the application of the rule, and we believe it is the universal practice, when such a situation exists, to permit the attorney to be examined fully in relation thereto. Sholine v. Harris, 22 Colo. App. 63, 123 P. 330 (1912).

This is because this section gives a personal privilege, and if the client makes the disclosure himself, it ceases to be a secret. The defendant testified to what transpired between her husband, the attorney, and herself. By so doing she made it public, and thereby waived her right to object to the attorney giving his own account of the matter. Fearnley v. Fearnley, 44 Colo. 417 , 98 P. 819 (1908); Mauro v. Tracy, 152 Colo. 106 , 380 P.2d 570 (1963).

The attorney may thereafter be examined in regard thereto. Fearnley v. Fearnley, 44 Colo. 417 , 98 P. 819 (1908).

As defendant put in issue what advice he did or did not receive from counsel, he waived the attorney-client privilege with respect to his discussions with counsel on these topics. People v. Sickich, 935 P.2d 70 (Colo. App. 1996).

The seal of silence is not removed by breach of professional relations. The general rule undoubtedly is that a breach of professional relations between attorney and client, whatever may be the cause, does not of itself remove the seal of silence from the lips of the attorney in respect to matters received by him in confidence from his client. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894).

The attorney-client privilege and the work-product exemption are distinct but related theories, arising out of similar policy interests. A v. District Court, 191 Colo. 10 , 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 96 S. Ct. 3187, 50 L. Ed. 2d 751 (1977).

Generally, the attorney-client privilege protects communications between the attorney and the client, and the promotion of such confidences is said to exist for the benefit of the client. On the other hand, the work-product exemption generally applies to “documents and tangible things . . . prepared in anticipation of litigation or for trial”, and its goal is to ensure the privacy of the attorney from opposing parties and counsel. A v. District Court, 191 Colo. 10 , 550 P.2d 315 (1976), cert. denied, 429 U.S. 1040, 96 S. Ct. 3187, 50 L. Ed. 2d 751 (1977); Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

Attorney-client privilege not absolute. Neither the attorney-client privilege nor the work-product exemption is absolute. The social policies underlying each doctrine may sometimes conflict with other prevailing public policies and, in such circumstances, the attorney-client privilege and the work-product doctrine must give way. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982); People v. Salazar, 835 P.2d 592 (Colo. App. 1992).

Neither the attorney-client privilege nor the work-product doctrine creates an absolute immunity for statements made to attorneys or to their agents. Kay Labs., Inc. v. District Court, 653 P.2d 721 (Colo. 1982).

There are recognized exceptions to the privilege, and the privilege may be waived in certain circumstances. The exceptions, however, are simply exceptions. To drive the privilege away, there must be something to give color to the charge; there must be prima facie evidence that it has some foundation in fact. The rule is that attorney-client communications are privileged and protected from discovery by opposing parties. People v. Madera, 112 P.3d 688 (Colo. 2005).

Courts have found implied waiver of the attorney-client privilege when a defendant places the allegedly privileged communication at issue in the litigation, because any other rule would enable the client to use as a sword the protection that is awarded him or her as a shield. People v. Madera, 112 P.3d 688 (Colo. 2005).

Implied waiver may occur when the defendant raises a claim of ineffective assistance of counsel as to any communications relevant to that claim. People v. Madera, 112 P.3d 688 (Colo. 2005).

Implied waiver in these circumstances is comparable to a situation where the trial court gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it. People v. Madera, 112 P.3d 688 (Colo. 2005).

The trial court must enter appropriate orders clearly delineating the contours of the limited waiver before the privilege holder discloses communications that would be privileged attorney-client communications but for the privilege holder's assertion of an ineffective assistance of counsel claim. People v. Madera, 112 P.3d 688 (Colo. 2005).

The court must impose a waiver no broader than needed to ensure the fairness of the proceedings before it. Rather than endorsing a blanket waiver, courts have adopted a three-pronged test for implied waiver of the attorney-client privilege that asks whether: (1) Assertion of the privilege was a result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to his or her defense. People v. Madera, 112 P.3d 688 (Colo. 2005).

Different types of ineffective assistance of counsel claims would raise very different implied waivers of the attorney-client privilege, and the documents that would be relevant to the claims would be very different as well. People v. Madera, 112 P.3d 688 (Colo. 2005).

In camera review is appropriate when a party opposing assertion of the attorney-client privilege makes some showing that an exception to the attorney-client privilege applies or that the privilege has been waived either explicitly or impliedly. People v. Madera, 112 P.3d 688 (Colo. 2005).

Before engaging in an in camera review of an attorney's file, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the attorney-client privilege does not protect all of the documents in the file. People v. Madera, 112 P.3d 688 (Colo. 2005).

A trial court must focus on the facts and circumstances of each case to determine the scope of the implied waiver. Before granting a request for in camera inspection of an attorney's case file, the trial court must determine (1) as precisely as possible, the information sought to be discovered, (2) whether the information is relevant to a matter at issue, (3) whether the information could be obtained by any other means, (4) whether the information is privileged, (5) if it is privileged, whether the privilege has been waived, and (6) if it is privileged, but has been waived, either explicitly or impliedly, the scope of the waiver. By using this analytical framework, a trial court can determine whether the moving party has shown a reasonable good faith belief that in camera inspection will reveal that the documents sought fall within an exception to the attorney-client privilege or that the defendant waived the privilege. People v. Madera, 112 P.3d 688 (Colo. 2005).

By entering a plea agreement, defendant does not waive his or her attorney-client privilege. People v. Trujillo, 144 P.3d 539 (Colo. 2006).

Agreeing to provide truthful testimony does not effect a waiver of attorney-client privilege. People v. Trujillo, 144 P.3d 539 (Colo. 2006).

Informational memo to insurer's general counsel prepared by outside counsel acting as a claims investigator not exempt from discovery under attorney-client privilege or work product doctrine. Nat. Farmers Union Prop. & Cas. v. District Court, 718 P.2d 1044 (Colo. 1986).

Where a lawyer is acting in an investigative capacity and not as a legal counselor with reference to whether an insurance claim should be paid, then neither the privilege created in this section nor the work product privilege protects communications from a lawyer to an insurance carrier. Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126 (Colo. App. 1998).

Client waives privilege when she orders production of letters to attorney. When plaintiff took the witness stand and asked that her letters to her alleged attorney be produced in order that she might refresh her memory from them, she impliedly gave her consent to their introduction and waived the privilege, if any there were. Hill v. Hill, 106 Colo. 492 , 107 P.2d 597 (1940).

Trial court properly admitted a letter containing defendant's inculpatory statements. In authorizing his attorney to deliver the letter to the victim's family, the defendant waived attorney client privilege and the letter was properly admitted as evidence. People v. Medina, 72 P.3d 405 (Colo. App. 2003).

Disclosing privileged communications to a third party. Statements made to opposing counsel regarding the underlying crime charged should not be construed as a waiver of attorney-client privilege, merely because the subject matter of the statements may also have been discussed in the privileged communications. People v. Trujillo, 144 P.3d 539 (Colo. 2006).

Judge may warn client that his testimony may waive privilege. Where the record reflects that the trial judge granted the defendant an opportunity to consider that his testimony as to his attorney's incompetence would waive the attorney-client privilege, and defendant elected to remain silent after advice of his present lawyer, the trial judge correctly pinpointed the issue without coercing a decision, because had the appellant testified as to the alleged incompetence of his counsel, it would have been proper for his counsel to testify as to his version of the event or transaction that led to that all-too-frequent charge of incompetence. Morse v. People, 180 Colo. 49 , 501 P.2d 1328 (1972).

Determination of whether an alleged inadvertent disclosure is considered a waiver of the privilege, during the course of judicial discovery, relies on several factors: (1) The extent to which reasonable precautions were taken to prevent the disclosure of privileged information; (2) the number of inadvertent disclosures made in relation to the total number of documents produced; (3) the extent to which the disclosure, albeit inadvertent, has, nevertheless, caused such a lack of confidentiality that no meaningful confidentiality can be restored; (4) the extent to which the disclosing party has sought remedial measures in a timely fashion; and (5) considerations of fairness to both parties under the circumstances. Floyd v. Coors Brewing Co., 952 P.2d 797 (Colo. App. 1997); In re Amich, 192 P.3d 422 (Colo. App. 2007).

Attorney may defend his ethics and conduct. It would be a strange rule which would prevent an attorney whose ethics and professional conduct are questioned from filing an affidavit in which his position in the matter is set forth. Browning v. Potter, 129 Colo. 448 , 271 P.2d 418 (1954).

Where both client and law firm are defendants in same action, trial court is within its discretion to protect client's privileged information by bifurcating trial. The trial court, after finding that crime-fraud exception did not apply, may order a bifurcated trial so as not to allow the plaintiff to use privileged information proffered by the law firm in its own defense against the client. Colo. Coffee Bean v. Peaberry Coffee, 251 P.3d 9 (Colo. App. 2010).

By testifying to alleged incompetence of his trial counsel, defendant waives attorney-client privilege. Further, if the defendant testifies as to the incompetence of his trial counsel, it would be proper for the trial counsel to testify as to his version of the events and transactions which led to the charge of incompetence. People v. Mullins, 188 Colo. 29 , 532 P.2d 736 (1975).

This paragraph should be fairly construed and applied. When a party invokes the protection of paragraph (b), it should not be unduly extended or restricted, but should be fairly construed and applied according to the plain import of its terms so as to effectuate its intent and purpose. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894).

Privileged communications made between defendant and his attorneys remain privileged after defendant's death. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's lifetime. Wesp v. Everson, 33 P.3d 191 (Colo. 2001).

But by nominating a personal representative, a client impliedly waives any claim of attorney-client privilege with respect to communications necessary for estate administration, unless the client expressly manifested the intent to maintain the privilege. In re Estate of Rabin, 2020 CO 77, 474 P.3d 1211.

It does not apply after client's death. While a client is living an attorney could not testify as to privileged communication without his consent, the rule is otherwise after his death in regard to matters in dispute arising in probate between devisees and heirs. In re Shapter's Estate, 35 Colo. 578 , 85 P. 688 (1906).

Testamentary exception allowing attorney who drafted the will of a deceased client to disclose attorney-client communications concerning the will and transactions leading to its execution in a suit between the testator's heirs, devisees, or other parties who claim by succession from the testator does not apply in tort case brought against testator by his heir. Wesp v. Everson, 33 P.3d 191 (Colo. 2001).

Communications made to an attorney for the purpose of being conveyed by him to others are stripped of the idea of a confidential disclosure, and, therefore, are not privileged. Hill v. Hill, 106 Colo. 492 , 107 P.2d 597 (1940); S.C. Ins. Co. v. Fisher, 698 P.2d 1369 (Colo. App. 1984).

An attorney is a competent witness in behalf of his client in the very cause which he prosecutes or defends. Sholine v. Harris, 22 Colo. App. 63, 123 P. 330 (1912).

In a lunacy inquisition an attorney who has had charge of defendant's legal business may testify as to his inability to properly manage his affairs. Such testimony does not violate this section. Hawkyard v. People, 115 Colo. 35 , 169 P.2d 178 (1946).

Client's perjury not grounds for attorney's breach of confidences. An attorney may not breach his duty of maintaining his client's confidences even when he knows his client has previously perjured himself. People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980), rev'd on other grounds, 638 P.2d 8 (Colo. 1981).

Court may not compel attorney's disclosure. The trial court may explore the adequacy of trial counsel's representations regarding his grounds for withdrawal, but in the course of this inquiry, the court may not compel the attorney to disclose any confidential communications. People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980), rev'd on other grounds, 638 P.2d 8 (Colo. 1981).

In determining whether or not an attorney should be required or permitted to testify to a conversation between himself and another person without the consent of the latter, the test is: Had such person at the time of the conversation employed the attorney in his professional capacity in respect to the subject matter of the conversation? If yes, the testimony would not be admissible; otherwise, it would be. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894).

Privilege is established by client seeking professional advice from lawyer. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

Employment is established if consultation is had by person seeking professional advice. If a person, in respect to his business affairs or troubles of any kind, consults with an attorney in his professional capacity with the view to obtaining professional advice or assistance, and the attorney voluntarily permits or acquiesces in such consultation, then the professional employment must be regarded as established; and the communication made by the client or advice given by the attorney under such circumstances is privileged. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894).

Even if it is the person's preliminary statement of his case. An attorney is employed -- that is, he is engaged in his professional capacity as a lawyer or counselor -- when he is listening to his client's preliminary statement of his case, or when he is giving advice thereon, just as truly as when he is drawing his client's pleadings, or advocating his client's cause in open court. It is the consultation between attorney and client which is privileged, and which must ever remain so, even though the attorney, after hearing the preliminary statement, should decline to be retained further in the cause, or the client, after hearing the attorney's advice, should decline to further employ him. Denver Tramway Co. v. Owens, 20 Colo. 107 , 36 P. 848 (1894).

A communication said to be within the privilege must relate to subject matter of the employment. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

Communications which pertain only to attorney's employment probably would not be privileged. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

Privilege extends only to confidential matters communicated by or to client in the course of gaining counsel, advice, or direction with respect to the client's rights or obligations. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975); People v. Tippett, 733 P.2d 1183 (Colo. 1987); DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, 303 P.3d 1187.

Where attorney testified as to existence of a written stipulation the contents of which were known by third parties, the attorney did not testify as to confidential communications. People v. Tippett, 733 P.2d 1183 (Colo. 1987).

The privilege applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential. Lanari v. People, 827 P.2d 495 (Colo. 1992); People in Interest of E.H., 837 P.2d 284 (Colo. App. 1992).

Where the evidence to be obtained from prior counsel was not of a confidential nature, the attorney-client privilege did not protect its disclosure. People v. Williamson, 839 P.2d 519 (Colo. App. 1992).

Just because report is made upon advice of counsel does not make it privileged. The practice of making a hospital incident report may have resulted from the advice of counsel, but it is plain that these incident reports were not prepared for the attorney. They were prepared for certain administrative officials of the hospital and they were available to the hospital's attorney. To entitle the party to the protection accorded to privileged communications, the communications must have been made to the attorney acting in the character of legal advisor, and made by the client for the purpose of professional advice or aid upon the subject of his rights and liabilities. Bernardi v. Cmty. Hosp. Ass'n, 166 Colo. 280 , 443 P.2d 708 (1968).

To conclude that legal advice loses its privileged character when it is based on public information would render the attorney-client privilege meaningless in many circumstances. Attorneys regularly base legal advice on public information. What matters is that the legal advice is given in response to a confidential client communication, irrespective of whether that advice is informed by publicly available information. DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, 303 P.3d 1187.

Applicability of privilege to physical evidence. Protection for confidential communications does not apply to physical evidence unless the evidence is created in the course of the lawyer-client consultation. People v. Swearingen, 649 P.2d 1102 (Colo. 1982).

Privilege before grand jury decided by trial court. An attorney-witness must, except in the most exceptional of circumstances, honor a properly issued subpoena by appearing before the grand jury. It is then for the trial court to determine whether a specific interrogatory posed by the grand jury or the district attorney calls for an answer which falls within or without the privilege; or, whether the information sought to be elicited is so inextricably intertwined with confidential communications that, if untangled, that which is not within the privilege would be meaningless without that which is privileged. In the latter event the privilege should also be respected. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

Sunshine act impact. The sunshine act cannot and does not repeal by implication the statute concerning the attorney-client evidentiary privilege. Thus the provision concerning executive sessions involving “attorney-client communications” in the laws of the regents is upheld. Associated Students of Univ. of Colo. v. Regents of Univ. of Colo., 189 Colo. 482 , 543 P.2d 59 (1975).

Applicability to attorney's employees. Paragraph (b) can only be reasonably interpreted as extending privilege to an attorney's employees if the attorney is also so privileged. People v. Silvola, 190 Colo. 363 , 547 P.2d 1283, cert. denied, 429 U.S. 886, 97 S. Ct. 238, 50 L. Ed. 2d 167 (1976); Sequa v. Lititech, Inc., 807 F. Supp. 653 (D. Colo. 1992 ).

The last clause in paragraph (b) concerning employees refers to cases where the lawyer himself is unable to testify because of the attorney-client privilege. People v. Silvola, 190 Colo. 363 , 547 P.2d 1283, cert. denied, 429 U.S. 886, 97 S. Ct. 238, 50 L. Ed. 2d 167 (1976).

Once an attorney can no longer claim privilege, he likewise can no longer prevent his employees from testifying. People v. Silvola, 190 Colo. 363 , 547 P.2d 1283, cert. denied, 429 U.S. 886, 97 S. Ct. 238, 50 L. Ed. 2d 167 (1976).

Determination of whether an attorney-client privilege exists between a governmental entity's legal counsel and the governmental entity's independent contractor is based on a four-part test. (1) The information-giver must be an employee, agent, or independent contractor with a significant relationship not only to the governmental entity but also to the transaction that is the subject of the governmental entity's need for legal services. If the first requirement is satisfied, the party seeking to exercise the privilege must also show: (2) The communication was made for the purpose of seeking or providing legal assistance; (3) the subject matter of the communication was within the scope of the duties provided to the entity by its employee, agent, or independent contractor; and, (4) the communication was treated as confidential and disseminated only to those persons with a specific need to know its contents. Alliance Constr. Sols., Inc. v. Dept. of Corr., 54 P.3d 861 (Colo. 2002).

Privilege does not encompass handwriting expert's testimony since it was based on his observations derived from sources other than the client's confidential communications. People v. Perez, 701 P.2d 104 (Colo. App. 1985), rev'd on other grounds, 745 P.2d 650 (Colo. 1987).

Attorney-client privilege relates to communications made by insured to his insurance company where the insurance company is bound by the terms of the insurance contract to represent him. Bellmann v. District Court, 187 Colo. 350 , 531 P.2d 632 (1975).

Colorado recognizes the “co-defendant” or “joint clients” application of the attorney-client privilege. Matters learned of during a meeting with a co-defendant and a joint attorney concerning an issue of common interest or joint defense are subject to the attorney-client privilege. Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000).

Burden of establishing a waiver of the attorney-client privilege is on the party seeking to overcome the privilege. Miller v. District Court, 737 P.2d 834 (Colo. 1987); Mtn. States Tel. & Tel. Co. v. DiFede, 780 P.2d 533 (Colo. 1989); People v. Sickich, 935 P.2d 70 (Colo. App. 1996); People v. Madera, 112 P.3d 688 (Colo. 2005).

Evaluation of mother's relationship with her children not privileged under attorney-client privilege since mother requested court to appoint the psychologist and since the psychologist was appointed and hired under circumstances which prevented the creation of any attorney-client privilege. People in Interest of O.J.S., 844 P.2d 1230 (Colo. App. 1992).

Burden of proving that a communication is protected by the attorney-client privilege is upon the person asserting the privilege. People v. Salazar, 835 P.2d 592 (Colo. App. 1992).

By placing in issue a confidential communication going directly to the claim or defense, a party impliedly waives the attorney-client privilege with respect to that communication. Mtn. States Tel. & Tel. v. DiFede, 780 P.2d 533 (Colo. 1989).

Client did not assert a claim or defense that either focused or depended on advice given by her counsel or that placed any privileged communications at issue. Therefore, client did not impliedly waive the attorney-client privilege. Rademacher v. Greschler, 2020 CO 4, 455 P.3d 769.

The defendant impliedly waived the attorney-client privilege with respect to information obtained by the prosecution during an interview with a psychiatrist because defendant listed the psychiatrist as a potential witness. Lanari v. People, 827 P.2d 495 (Colo. 1992).

Defendant's assertion of a mental status defense does not indicate an implied waiver of the attorney-client privilege. Miller v. District Court, 737 P.2d 834 (Colo. 1987).

Affidavit did not place privileged communications at issue and, therefore, did not result in an implied waiver of the attorney-client privilege. The mere denial of an allegation in an affidavit does not waive the attorney-client privilege. The affidavit did not concern any privileged information. And the affidavit was not in support of any claim or defense that depends on privileged information or attorney advice. State Farm Fire & Cas. Co. v. Griggs, 2018 CO 50, 419 P.3d 572.

Statements made initially in confidence to an attorney lose the shield of the attorney-client privilege if the statements are subsequently disclosed to third parties. Lanari v. People, 827 P.2d 495 (Colo. 1992).

The presence of a third party during attorney-client communications will ordinarily destroy the attorney-client privilege unless the third party's presence is reasonably necessary to the consultation. Fox v. Alfini, 2018 CO 94, 432 P.3d 596.

The presence of the client's parents at the client's consultation with her attorney was not reasonably necessary to the client's communication with the attorney where there was evidence that the client did not have diminished capacity to the extent necessitating the presence of her parents to assist her in the communication. Fox v. Alfini, 2018 CO 94, 432 P.3d 596.

Communications made at joint meetings with defendant, his wife, and counsel, were not privileged, however, suicide letters which disclose communications made at joint meetings do not waive all other communications which would have been privileged absent the suicide letters and the statements made therein; absent proof of another basis to pierce the protection of the attorney-client privilege, all other communications between defendant and his counsel remain privileged. Wesp v. Everson, 33 P.3d 191 (Colo. 2001).

Testimony by attorney concerning amounts received from client is not within privilege where the nature of the representation is known to all parties and payment of fees does not necessarily reflect the subject matter of a previously undisclosed, protected communication. In re Schneider, 831 P.2d 919 (Colo. App. 1992).

Once the privilege has been waived in one proceeding, it cannot be reasserted with respect to the same communications in a different proceeding. People in Interest of E.H., 837 P.2d 284 (Colo. App. 1992).

An attorney's consent to the interview of his former legal secretary is required only when privileged information is sought. Sequa v. Lititech, Inc., 807 F. Supp. 653 (D. Colo. 1992 ).

A plain reading of this section and § 16-8-103.6 is that the attorney-client and the physician-patient privileges do not apply to communications made to physicians or psychologists who are eligible to testify concerning a defendant's mental condition once the defendant enters a mental condition plea or defense. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

A defendant who places his or her mental condition at issue waives the attorney-client and the physician-patient privileges. The prosecution may use the testimony of a physician retained by the defense even though the defense does not intend to use the physician at trial. In addition, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

There is no piercing of attorney-client privilege when the application of the privilege results in manifest injustice. Wesp v. Everson, 33 P.3d 191 (Colo. 2001).

Guardian ad litem (GAL) may testify without the consent of the child regarding the child's communications to the GAL. The GAL does not have an attorney-client relationship with a child who is the subject of a dependency and neglect proceeding, and the evidentiary privilege in subsection (1)(b) does not preclude the GAL's testimony in a criminal action against stepfather. The GAL is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child, and neither the statutes requiring the appointment of a GAL nor chief justice directive 04-06 creates an attorney-client relationship. People v. Gabriesheski, 262 P.3d 653 (Colo. 2011).

Title opinions, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met. A “title opinion” is a statement of opinion written by an attorney, often in the form of a letter, as to the state of the title to land, mineral, or working interests. DCP Midstream, LP v. Anadarko Petroleum Corp., 2013 CO 36, 303 P.3d 1187.

B. “Crime-Fraud” Exception.

“Crime-fraud” exception to privilege. The “crime-fraud” or “criminal purposes” exception has developed as a limitation on the applicability of the attorney-client privilege and the work-product exemption. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

The crime-fraud exception provides that communications between a client and his attorney are not privileged if they are made for the purpose of aiding the commission of a future crime or of a present continuing crime. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

“Future crimes” exception to the attorney-client privilege extends to communications between attorney and client for the purpose of aiding and continuing or future civil wrong. Caldwell v. District Court, 644 P.2d 26 (Colo. 1982).

This exception is also applicable to advice or aid secured in the perpetration of a fraud. Caldwell v. District Court, 644 P.2d 26 (Colo. 1982).

To invoke the crime-fraud exception and defeat attorney-client privilege, first the party must make a threshold showing to support a good faith belief by a reasonable person that wrongful conduct sufficient to invoke the exception occurred. Second, the party must demonstrate probable cause to believe that a crime or fraud was being attempted or committed and that the communication was made in furtherance of the crime or fraud. In re 2015 2016 Jefferson County Grand Jury, 2018 CO 9, 410 P.3d 53.

Client must know of unlawfulness of conduct. In order for the crime or fraud exception to the attorney-client privilege to apply, the client must know or reasonably should know of the unlawfulness of his conduct. Caldwell v. District Court, 644 P.2d 26 (Colo. 1982).

Prima facie showing required to invoke exception. A prima facie showing -- one which gives a foundation in fact for the assertion of ongoing or future criminal conduct -- is sufficient to invoke the applicability of the crime-fraud exception. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

There must be a prima facie showing that the “crime-fraud” exception applies before the communication is stripped of its privilege. People v. Board, 656 P.2d 712 (Colo. App. 1982).

Applicability of exception is within trial court's discretion. Whether the prosecution has established a proper foundation in fact for the application of the crime-fraud exception is best left for determination by the trial court, whose exercise of discretion will not be overturned unless the record shows an abuse of that discretion. People v. Board, 656 P.2d 712 (Colo. App. 1982).

For procedure for determining whether civil fraud exception is applicable, see Caldwell v. District Court, 644 P.2d 26 (Colo. 1982).

Client's communication to attorney of proposed infraction of law does not come within privilege. Losavio v. District Court, 188 Colo. 127 , 533 P.2d 32 (1975).

IV. CLERGY.

The purpose of subsection (1)(c) is to protect an accused from the indirect violation of his state constitutional right against self-incrimination. Ferrell v. Vogt, 161 Colo. 549 , 423 P.2d 844 (1967).

Statements made to clergyman merely as a gentleman are not privileged. Statements made to a clergyman, not in his professional character, nor in the course of any clerical discipline enjoined by the church, but voluntarily, as if made to any other gentleman, are not privileged under this section. Milburn v. Haworth, 47 Colo. 593 , 108 P. 155 (1910); People v. Police, 651 P.2d 430 (Colo. App. 1982).

Conversation between defendant and chaplain about defendant's assault charge does not satisfy “confidential communication” requirement of this section. People v. Trammell, 2014 COA 34 , 345 P.3d 945.

Because two of the four statutory elements of privileged communication were not met, defendant failed to demonstrate that trial court erred in admitting chaplain's testimony. People v. Trammell, 2014 COA 34 , 345 P.3d 945.

V. PHYSICIAN.

This section is in derogation of the common law and was adopted to achieve the purpose of placing a patient in a position in which he or she would be more inclined to make a full disclosure to the doctor and to prevent the patient from being humiliated and embarrassed by disclosure of information about the patient by his or her doctor. Cmty. Hosp. Ass'n v. District Court, 194 Colo. 98 , 570 P.2d 243 (1977).

Policy of the law is to preserve information procured from a patient by a physician for the purpose of treating him as a secret between them and inviolate except with the consent of the patient. Riss & Co. v. Galloway, 108 Colo. 93 , 114 P.2d 550 (1941).

This relationship involves private matters. The relationship between a physician and his patient and any information acquired from that relationship are extremely private matters warranting a high degree of protection. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971).

The provisions of this paragraph are clear, intelligible and easily understood, cannot be said to be in any sense unreasonable or absurd, are subversive of no legal private rights, and are not inconsistent with themselves or with any other law. Under such circumstances, however fully we might agree with counsel that they should be extended and broadened, the courts are without power in that regard. The remedy is with the general assembly alone. Head Camp, Pac. Jurisdiction, Woodmen of the World v. Loeher, 17 Colo. App. 247, 68 P. 136 (1902).

The privilege is personal to the patient. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971).

Or to his estate. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971).

It does not matter how the information may be acquired. Whether it comes to the surgeon in the shape of oral statements, or by reason of his examination, he cannot be interrogated respecting it. Colo. Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 P. 875 (1896).

The information must be necessary for physician to act for patient. Where the accused refused to permit the physician who attended him for the wound in question to remove the bullet, and refused to tell him how he received the wound, allowing the testimony of the physician as to this matter was no violation of this section. Cook v. People, 60 Colo. 263 , 153 P. 214 (1915); Cont'l Inv. Co. v. Garcher, 83 Colo. 239 , 264 P. 723 (1928).

Statutory privilege did not apply to statements that were not necessary to enable nurse to prescribe or act for defendant. People v. Garrison, 109 P.3d 1009 (Colo. App. 2004).

Observations that a physician assistant was required to make in order to prescribe or act for the patient would have been privileged, however, § 12-36-135 , which requires physicians to report and testify in episodes of domestic violence or gunshot wounds, abrogated the privilege. Physician assistant could testify over the objection of the patient about photographs of the patient's wounds taken by physician assistant for an investigating officer at the time of the patient's initial treatment in emergency room. People v. Covington, 19 P.3d 15 (Colo. 2001).

Statements made by one to a doctor are not ipso facto privileged, but are privileged only if they meet all of the several requirements contained in this section. Nelson v. Grissom, 152 Colo. 502 , 382 P.2d 991 (1963).

Information given in connection with application for admission to hospital. Any information given by a party to a doctor who attended him as his physician and gave him treatment, in connection with his application for admission to a hospital for a nervous disorder, was a privileged communication. Gerick v. Brock, 120 Colo. 394 , 210 P.2d 214 (1949).

Privilege exists even if doctor is employed by patient's employer. Defendant and another company, employing many workmen, established a hospital for the use of both in the care and treatment of their employees. It was supported, in whole or in part, by deductions from the monthly wages of the employees of both companies for a “hospital fund”, which was devoted to the maintenance of the building, hire of physicians, etc. The plaintiff was an employee of the defendant, and, after sustaining an injury, put himself under the charge of the doctor employed by the company. The relation of physician and patient existed between them, and the physician could not, without the plaintiff's consent, be examined concerning the nature and character of the injuries, the knowledge of which he acquired while the plaintiff was under his treatment. Colo. Fuel & Iron Co. v. Cummings, 8 Colo. App. 541, 46 P. 875 (1896).

Results of alcohol blood test are not privileged. In an action for damages for personal injuries, the testimony of a physician at the hospital where defendant was taken in an unconscious condition, to the effect that a blood sample taken from one of the veins in defendant's arm at the request of a public officer showed sufficient blood alcohol to cause a state of drunkenness in the average person, was properly admitted, it appearing that the physician was not acting for defendant personally, or that the information obtained was necessary to enable him to prescribe or act for the patient. Hanlon v. Woodhouse, 113 Colo. 504 , 160 P.2d 998 (1945).

Even when patient lacks ability to consent. Where the defendant was charged with causing injury while driving under the influence of intoxicating liquor, the trial court denied the motion to suppress the blood sample where the defendant was in a semiconscious condition and was unable to consent or to refuse to give his consent. People v. Fidler, 175 Colo. 90 , 485 P.2d 725 (1971).

For admissibility of urine sample, see People v. Kokesh, 175 Colo. 206 , 486 P.2d 429 (1971).

This paragraph (V) does not extend to names, addresses, and telephone numbers. Wolf v. People, 117 Colo. 279 , 187 P.2d 926 (1947); People v. Perez, 129 P.3d 1090 (Colo. App. 2005).

If the disclosure reveals the ailments but not the patient's identity, then such disclosure would appear not to violate the privilege. Cmty. Hosp. Ass'n v. District Court, 194 Colo. 98 , 570 P.2d 243 (1977).

Neither is the privilege violated when the disclosure reveals the patient's identity but not the ailment. In re Search Warrant for 2045 Franklin, Denver, 709 P.2d 597 (Colo. App. 1985).

Communications made to physician pursuant to § 14-10-127 not privileged. Since the information was necessary to make an evaluation concerning custody and not for treatment, the physician-patient privilege is inapplicable. Anderson v. Glismann, 577 F. Supp. 1506 (D. Colo. 1984 ).

Communication made to physician to procure controlled substance for illegitimate purpose is not privileged under § 18-18-415 (1)(b) ; thus, no waiver is required to introduce the communication at trial. People v. Harte, 131 P.3d 1180 (Colo. App. 2005).

Although a physician's original prescription order constitutes a medical record created in the course of treatment, it is included in the exception to the privilege established in § 18-18-415 (1)(b) . Thus, defendant who altered the original prescription for a controlled substance was unable to shield the original prescription by claiming physician-patient privilege. People v. Moon, 2015 COA 23 , 411 P.3d 130.

The Colorado medicaid fraud control unit is an “organization authorized by federal or state law or contract to review physicians' ... services” as contemplated by subsection (1)(d)(III)(B) and therefore the privilege does not apply. In re Search Warrant for 2045 Franklin, Denver, 709 P.2d 597 (Colo. App. 1985).

The public policy of maintaining and ensuring an efficiently operating medicaid program outweighs the privacy interests inherent in the physician-patient relationship insofar as utilization of the medicaid program is concerned. In re Search Warrant for 2045 Franklin, Denver, 709 P.2d 597 (Colo. App. 1985).

A recipient of medical services who has chosen to participate in the medicaid program waives the privilege to the extent necessary for the state to verify the services billed by the provider. In re Search Warrant for 2045 Franklin, Denver, 709 P.2d 597 (Colo. App. 1985).

Disclosure by a physician should be prevented unless waived. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971).

Trial court to determine whether exception applies. Even if the physician-patient privilege is applicable, the trial court should determine whether one of the prescribed statutory exceptions applies. Sherman v. District Court, 637 P.2d 378 (Colo. 1981).

In camera hearing as to nature of information sought from physician. Before ruling on a claim of physician-patient privilege, the trial court should determine whether the particular information sought from the doctor was in fact necessary for treatment of the patient, and an in camera hearing is normally appropriate to allow consideration of this preliminary fact question outside the presence of the jury. People v. Reynolds, 195 Colo. 386 , 578 P.2d 647 (1978).

Improper admission is reversible error. Where there is improper testimony precluded by this statute which could have influenced the verdict in an action, the admission of such evidence is reversible error. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971); People v. Covington, 988 P.2d 657 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 15 (Colo. 2001).

The law will provide protection at the time disclosure is attempted, rather than merely providing a remedy after violation. Stauffer v. Karabin, 30 Colo. App. 357, 492 P.2d 862 (1971).

Patient may expressly or impliedly waive privilege. In order to protect the confidential relationship existing between physician and patient, and to encourage full disclosure between the two, our statute provides that a patient may invoke a claim of privilege and prohibit a physician from testifying. Such a rule is not an absolute one. In certain instances a patient may expressly or impliedly waive such a claim of privilege. Kelley v. Holmes, 28 Colo. App. 79, 470 P.2d 590 (1970).

Where defendant's abusive language, loud demeanor and offensive behavior could be readily observed and heard by anyone present in the emergency room, such conduct constitutes an implied waiver of any physician-patient privilege with respect to the doctor's observation of the defendant's behavior. People v. Deadmond, 683 P.2d 763 (Colo. 1984).

A defendant waives the physician-patient privilege with regard to a particular subject matter when his own testimony directly raises that factual issue. People v. Deadmond, 683 P.2d 763 (Colo. 1984).

Physician-patient privilege is not implicitly waived when medical records, statutorily required to be supplied, are filed with an insurance company. Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998).

This paragraph does not apply when patient fails to object to disclosure. This paragraph does not apply when patient is before the court, is cognizant of the proceeding, and makes no objection to the disclosure. Wolf v. People, 117 Colo. 279 , 187 P.2d 926 (1947).

Patient held not to have waived privilege by mere failure to ask whether all aspects of her examination were in furtherance of medical treatment, including photographs taken by a physician's assistant on behalf of an investigating officer. It is the burden of the party seeking to overcome the privilege to establish a valid waiver of the privilege, and because the record was not clear that the patient understood why pictures were being taken of her injuries, the burden was not established. People v. Covington, 988 P.2d 657 (Colo. App. 1999), rev'd on other grounds, 19 P.3d 15 (Colo. 2001).

Once the issue of injury is raised by a party he is deemed to have waived his claim of privilege. Kelley v. Holmes, 28 Colo. App. 79, 470 P.2d 590 (1970).

Where a plaintiff testifies as to the details of the service and treatment rendered to him by physicians, and of the charges made therefor, he waives the protection of this section as to the matters testified to by him; it was not error to admit the testimony of the physicians concerned in rebuttal of such evidence. Mauro v. Tracy, 152 Colo. 106 , 380 P.2d 570 (1963).

If privilege was not already waived, admission of physician's testimony was harmless error where physician testified that a cut on the defendant's hand could have been caused either by a knife, as asserted by the prosecution, or by a piece of broken glass, as asserted by the defense, and this testimony concerned the same subject matter as defendant's disclosure to his wife in his confession. People v. Thompson, 950 P.2d 608 (Colo. App. 1997).

Waiver as to all doctors consulted about the injuries. The nature and extent of plaintiff's injuries was in issue. Plaintiff produced evidence as to the seriousness of his injuries. Once plaintiff had raised this issue, he has waived the physician-patient privilege, not only to the doctors he has called, but as to all physicians consulted concerning these injuries. Kelley v. Holmes, 28 Colo. App. 79, 470 P.2d 590 (1970).

Plaintiff in personal injury action impliedly waives physician-patient privilege only for matters that are relevant in determining the cause and extent of injuries which form the basis of the complaint. Samms v. District Court, Fourth Jud. Dist., 908 P.2d 520 (Colo. 1995); Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998); Alcon v. Spicer, 113 P.3d 735 (Colo. 2005); Cardenas v. Jerath, 180 P.3d 415 (Colo. 2008).

Only the privilege holder may impliedly waive the physician-patient privilege. The proper inquiry is whether the privilege holder has injected his or her physical or mental condition into the case as the basis of a claim or an affirmative defense. Denying the opposing party's allegations does not suffice to establish a waiver. Gadeco, LLC v. Grynberg, 2018 CO 22, 415 P.3d 323.

Defense attorney must provide plaintiff with reasonable notice of an informal discussion with plaintiff's physician, and plaintiff's physician may decline to participate in such informal discussion. Samms v. District Court, Fourth Jud. Dist., 908 P.2d 520 (Colo. 1995).

When a patient institutes a lawsuit against a physician and the suit arises out of the physician's professional care, the physician-patient privilege does not apply and thus the patient's entire electronic medical file is not subject to the privilege. A review of the patient's complete medical record is relevant to the physician's ability to prepare a defense. Ortega v. Colo. Permanente Med. Group, P.C., 265 P.3d 444 (Colo. 2011).

Exception to the physician-patient privilege in subsection (1)(d)(II) for a medical provider who was in consultation with a defendant applies to a medical provider engaged in a unified course of treatment with a defendant. Holding in Samms v. Dist. Ct., annotated above, requiring notice of informal discussions with nonparty medical providers does not apply when the medical providers are engaged in a unified course of treatment that forms the basis of the malpractice action. Reutter v. Weber, 179 P.3d 977 (Colo. 2007).

However, for the exception to the physician-patient privilege in (1)(d)(II) to apply for medical providers in consultation with party medical providers, the non-party medical providers must be providing care “collectively and collaboratively” with the party medical providers. Bailey v. Hermacinski, 2018 CO 14, 413 P.3d 157.

Simply providing care for complaints and conditions arising out of the original acts of negligence is insufficient to be considered to be “in consultation with” and thus the exception does not apply. Bailey v. Hermacinski, 2018 CO 14, 413 P.3d 157.

Privilege does not shield guardian/conservator husband from being deposed in medical malpractice case concerning incapacitated wife's family medical history. Hartmann v. Nordin, 147 P.3d 43 (Colo. 2006).

Privilege does shield guardian/conservator husband from being deposed about his health and ability to care for incapacitated wife because husband's health and ability to care for wife are not relevant to wife's medical malpractice claims. Hartmann v. Nordin, 147 P.3d 43 (Colo. 2006).

This paragraph does not include a nurse or medical technician. Block v. People, 125 Colo. 36 , 240 P.2d 512 (1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370, reh'g denied, 344 U.S. 848, 73 S. Ct. 6, 97 L. Ed. 659 (1952).

Hospital and medical records fall within the scope of physician-patient privilege. Devenyns v. Hartig, 983 P.2d 63 (Colo. App. 1998).

Hospital records held either confidential records or hearsay, and in either event were inadmissible for impeachment or any other purpose. Young v. McLaughlin, 126 Colo. 188 , 247 P.2d 813 (1952).

Privilege prohibits pretrial discovery of confidential information. The physician-patient and psychologist-patient privileges, once they attach, prohibit not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege. Clark v. District Court, 668 P.2d 3 (Colo. 1983).

Hospital records subject to physician-patient privilege prohibits pretrial discovery and testimony disclosures of information within the scope of the privilege, and where there is neither an express nor an implied waiver and there is no showing of a particularized need the privilege is absolute. People v. Overton, 759 P.2d 772 (Colo. App. 1988).

Privilege applies only to a physician, surgeon, or registered professional nurse duly authorized to practice and does not apply to medical technicians. Belle Bonfils Mem'l Blood Ctr. v. District Court, 763 P.2d 1003 (Colo. 1988).

A plain reading of this section and § 16-8-103.6 is that the attorney-client and the physician-patient privileges do not apply to communications made to physicians or psychologists who are eligible to testify concerning a defendant's mental condition once the defendant enters a mental condition plea or defense. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

A defendant who places his or her mental condition at issue waives the attorney-client and the physician-patient privileges. The prosecution may use the testimony of a physician retained by the defense even though the defense does not intend to use the physician at trial. In addition, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

Attorney-client privilege did not attach to expert evaluation conducted by expert appointed under § 19-3-607 (1) at request of mother in action for termination of parental rights. D.A.S. v. People, 863 P.2d 291 (Colo. 1993).

Personal injury plaintiff with generic claims for mental suffering has not placed her mental condition at issue where the mental suffering alleged is incident to the plaintiff's physical injuries and does not exceed the suffering and loss an ordinary person would likely experience. Therefore, the trial court may not find an implied waiver of the plaintiff's physician-patient or psychotherapist-client privileges based on a claim for mental suffering damages and trial court erred in ordering that records related to plaintiff's psychiatric and marriage counseling be disclosed. Johnson v. Trujillo, 977 P.2d 152 (Colo. 1999); Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo. 2004).

Bare allegations of mental anguish, emotional distress, pain and suffering, and loss of enjoyment of life asserted in a complaint do not rise to the level of injecting plaintiff's prior mental and physical conditions into the case such that he or she completely waived the physician-patient privilege. Weil v. Dillon Cos., Inc., 109 P.3d 127 (Colo. 2005).

VI. PUBLIC OFFICER.

Conversations among the district attorney, his deputies and his assistants taking place prior to the impaneling of the grand jury and concerning the upcoming grand jury investigation are made in “official confidence” within the meaning of subsection (1)(e). People v. District Court, 193 Colo. 528 , 568 P.2d 445 (1977).

This paragraph is not applicable to an employee of the district court, who, though designated as an “officer”, is not in fact a “public officer” within the meaning and intent of the statute. The purpose of the statute was to protect matters relating to “affairs of state” and “state secrets” within the different branches of the government. Saucerman v. Saucerman, 170 Colo. 318 , 461 P.2d 18 (1969).

Confidential communications made to a probation officer in the performance of investigatory duties enjoined upon him by court order may be privileged in the event the public interest demands that the confidence thereof be preserved. Saucerman v. Saucerman, 170 Colo. 318 , 461 P.2d 18 (1969).

This paragraph makes the trial court the sole judge as to when the public interests would suffer by the disclosure. When a public officer is called upon on the witness stand to disclose such communications, his opinion that such disclosure is improper, and the reasons therefor, are matters to be presented to the court and are for the determination of the court -- not the witness. Lindsey v. People ex rel. Rush, 66 Colo. 343 , 181 P. 531 (1919).

If there are exceptions to this paragraph they are only such as fall within those stated by Stephens' Evidence, art. 112, p. 163: “The executive of the nation, or of a state, and cabinet officers (and perhaps others falling in the same general class) are entitled, in the exercise of their discretion, to determine how far in a judicial inquiry they will produce papers or answer questions as to public affairs.” Lindsey v. People ex rel. Rush, 181 P. 531 (1919).

VII. ACCOUNTANT.

Law reviews. For article, “Colorado's Accountant-Client Privilege”, see 24 Colo. Law. 283 (1995).

General assembly clearly intended the accountant-client privilege to apply without exception to all communications between client and the certified public accountant and the accountant's employees specified in the statute. There is no legislative expression which would indicate that the general assembly intended to qualify the privilege. Colo. State Bd. of Accountancy v. Raisch, 931 P.2d 498 (Colo. App. 1996), aff'd, 960 P.2d 102 (Colo. 1998).

The privilege created by this section is not the privilege of the accountant but that of the client. Weck v. District Court, 158 Colo. 521 , 408 P.2d 987 (1965).

All certified and uncertified work is privileged. The general assembly's purpose was to preserve the confidential relations set out in the statute. This purpose would not be served by holding that only certified work remains privileged. Pattie Lea, Inc. v. District Court, 161 Colo. 493 , 423 P.2d 27 (1967).

The accountant-client privilege under this section does apply to an accountant's work papers, reports, and financial statements, and to communications between accountants and their client and between each of them and third persons, which result in financial statements and an audit report thereon to bar their disclosure to shareholders of the corporation in an action by the shareholders against former officers and directors of the corporation and against the accountants, which action is based upon negligence, gross negligence, fraud, and conspiracy in the preparation and audit of the corporation's financial statements. Weck v. District Court, 158 Colo. 521 , 408 P.2d 987 (1965).

Certified public accountants hired by a corporation are hired for the benefit of all of its stockholders and such employment forbids concealment from the stockholders of information given the accountant by the corporation. Pattie Lea, Inc. v. District Court, 161 Colo. 493 , 423 P.2d 27 (1967).

Privilege is invalid in a stockholder derivative suit. The respondent is a stockholder in three of the corporations who are defendants in the original suit in the trial court. The certified public accountant-client privilege does not protect a corporation from being required to disclose to its own stockholders in a derivative suit brought in good faith against the corporation, communications made by the corporation to its certified public accountant. A corporate entity acts only for its stockholders and no greater liberality will be applied to facts which determine privilege in the case of a corporation than would be applied in the case of a natural person or association of persons. Pattie Lea, Inc. v. District Court, 161 Colo. 493 , 423 P.2d 27 (1967).

Where accountant-client privilege should not apply. Where the question involved is whether the corporation was governed properly or inimically to shareholder interests is a central issue of the case, shareholders should be allowed disclosure, and the accountant-client privilege should not apply. Neusteter v. District Court, 675 P.2d 1 (Colo. 1984).

Information certified public accountant received as corporate director is subject to disclosure. Insofar as a certified public accountant may be in possession of any information which he received as a director, he is subject to the same evidentiary rules as any other corporate director. If faced with the problem, the trial court will correctly distinguish the privileged from the nonprivileged information. The witness is subject to questioning as to nonprivileged information to the same extent as any other witness. Pattie Lea, Inc. v. District Court, 161 Colo. 493 , 423 P.2d 27 (1967).

However, a certified public accountant's subsequent employment by a corporation does not waive privilege. A witness does not waive his right to claim a privilege by accepting employment by a corporation several years prior to the commencement of an action in which an attempt is made to compel him to testify notwithstanding the privilege created by this paragraph. Weck v. District Court, 158 Colo. 521 , 408 P.2d 987 (1965).

Where an accountant was appointed by the court to audit the books of a corporation half-owned by the defendant and defendant neither ordered, controlled, nor paid for the accountant's services, defendant could not invoke accountant-client privilege. People v. Zimbelman, 194 Colo. 384 , 572 P.2d 830 (1977).

This paragraph concerning testimony of accountants held to have no application to a criminal case in which it appeared that the accountant testifying was not employed by, and was not a client of, defendant. Hopkins v. People, 89 Colo. 296 , 1 P.2d 937 (1931).

VIII. PSYCHIATRIST.

Law reviews. For article, “New Definitions of Therapist Confidentiality”, see 18 Colo. Law. 251 (1989). For comment, “The Guardian Ad Litem as the Child's Privilege Holder”, see 87 U. Colo. L. Rev. 205 (2016).

It is error to deny one the opportunity to show that hospital records and the testimony of a psychiatrist were not privileged, and were otherwise competent. Nelson v. Grissom, 152 Colo. 502 , 382 P.2d 991 (1963).

Respondent-patient entitled to assert privilege where she sought voluntary treatment. Where respondent sought voluntary treatment and her psychiatrist petitioned alleging that she would not remain in a voluntary treatment program, the respondent was entitled to assert her statutory physician-patient privilege if her psychiatrist was called upon as a witness to testify about any information he acquired in attending the respondent which was necessary for him to prescribe or act for her during the period of her voluntary treatment. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Psychiatrist-patient privilege did not apply to statements made to a police detective. Williams v. People, 687 P.2d 950 (Colo. App. 1984).

Where a psychiatrist was retained by defense counsel to evaluate the defendant's condition, the defendant's confidential communications to the psychiatrist were privileged under this section. Miller v. District Court, 737 P.2d 834 (Colo. 1987).

Defendant's statement to psychiatrist that was provided to the prosecution under Crim. P. 16 loses its confidential nature and cross-examination of the defendant concerning such statements as prior inconsistent statements is proper impeachment, even if the psychiatrist did not testify at the defendant's trial. Use of such statements do not violate the attorney-client privilege or the right to effective assistance of counsel. People v. Lanari, 811 P.2d 399 (Colo. App. 1989), aff'd, 827 P.2d 495 (Colo. 1992).

Where an immunity agreement has been drafted by the government, basic considerations of fairness dictate that any ambiguity as to the scope of the governmental promise be resolved in favor of the defendant. Given reasonable alternative interpretations as to the scope of the governmental promise, the court will choose the interpretation favoring the defendant so long as that interpretation has a reasonable foundation in the document itself and in the circumstances surrounding its execution. People v. Romero, 745 P.2d 1003 (Colo. 1987), cert. denied, 485 U.S. 990, 108 S. Ct. 1296, 99 L. Ed. 2d 506 (1988).

“Use immunity” distinguished. “Use immunity” results in prohibiting the state from making use of any statements made by the defendant during the time covered by the agreement, and also bars state use of any evidence derived directly or indirectly from those statements. People v. Romero, 745 P.2d 1003 (Colo. 1987), cert. denied, 485 U.S. 990, 108 S. Ct. 1296, 99 L. Ed. 2d 506 (1988).

A plain reading of this section and § 16-8-103.6 is that the attorney-client and the physician-patient privileges do not apply to communications made to physicians or psychologists who are eligible to testify concerning a defendant's mental condition once the defendant enters a mental condition plea or defense. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

A defendant who places his or her mental condition at issue waives the attorney-client and the physician-patient privileges. The prosecution may use the testimony of a physician retained by the defense even though the defense does not intend to use the physician at trial. In addition, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

When a patient alleges a physical or mental condition as a basis for a claim of damages and thereby injects the issue into the case, the patient waives his or her physician-patient privilege with respect to the medical condition. Samms v. District Court, 908 P.2d 520 (Colo. 1995); Middleton v. Beckett, 960 P.2d 1213 (Colo. App. 1998).

Threatening communications made to a mental health provider that trigger the “duty to warn” statute are not confidential as a matter of law. Therefore, when the mental health provider discharges his or her duty to warn based on those communications, the threatening communications are not protected by the psychologist-patient privilege, and the therapist may testify to those threatening communications. People v. Kailey, 2014 CO 50, 333 P.3d 89.

Psychotherapist-patient privilege is not automatically waived if a juvenile defendant requests a reverse-transfer hearing pursuant to § 19-2-517 (3)(b)(VI) . Because the proper inquiry to determine whether there was a waiver of privilege is whether a party injected his or her physical or mental health condition into the case, simply requesting a reverse-transfer hearing does not waive the privilege. Section 19-2-517 (3)(b)(VI) only requires that the trial court consider mental health records “made available”, that is, voluntarily waived by the privilege holder. People v. Johnson, 2016 CO 69, 381 P.3d 316.

IX. PSYCHOLOGIST.

The purpose of the statutory psychologist-patient privilege is to aid in the effective diagnosis and treatment of mental illness by encouraging the patient to fully disclose information to the psychologist without fear of embarrassment or humiliation caused by disclosure of such confidential information. People v. District Court, 719 P.2d 722 (Colo. 1986); People v. Tauer, 847 P.2d 259 (Colo. App. 1993); People v. Dill, 904 P.2d 1367 (Colo. App. 1995), aff'd, 927 P.2d 1315 (Colo. 1996); Berg v. Shapiro, 948 P.2d 59 (Colo. App. 1997).

The psychologist-patient privilege provides that a licensed psychologist may not be examined without the consent of the client as to any communications made by the client to the psychologist or the psychologist's advice to the client. In order to compel discovery of the psychologist's records, there must be a waiver. The waiver may be implied if the privilege holder places their mental condition at issue. The privilege holder did not waive the privilege. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).

Psychologist-patient privilege did not apply to statements made to a police detective. Williams v. People, 687 P.2d 950 (Colo. 1984).

Psychologist-patient privilege did not apply to preclude discovery of data underlying a psychological consultant firm's report regarding the general relationship between the medical staff and the administration of a hospital. Berg v. Shapiro, 948 P.2d 59 (Colo. App. 1997).

Psychologist-patient privilege did not apply to mandatory production of relevant confidential documents and other information used by a governing board in determining the propriety of a psychologist's actions. Colo. Bd. of Psychologist Exam'rs v. I.W., 140 P.3d 186 (Colo. App. 2006).

Probate court did not err in ruling exception to privilege was applicable to preclude respondent's assertion of the psychologist-client privilege in a proceeding for long-term treatment certification. People v. Hynes, 917 P.2d 328 (Colo. App. 1996).

A session with a psychologist “to find out if there was truth to the allegations” is a psychologist session that falls within the ambit of the psychologist-patient privilege. People v. Marsh, 396 P.3d 1 (Colo. App. 2011), aff'd, 2017 CO 10M, 389 P.3d 100.

A corporation cannot be a client of a psychologist and thus cannot assert the psychologist-patient privilege. Berg v. Shapiro, 948 P.2d 59 (Colo. App. 1997).

Focus of 1993 amendments to subsection (1)(g) was to extend the applicability of the privilege to other types of health care providers, not to alter the scope of the privilege. People v. Hynes, 917 P.2d 328 (Colo. App. 1996).

Privilege prohibits pretrial discovery of confidential information. The physician-patient and psychologist-patient privileges, once they attach, prohibit not only testimonial disclosures in court but also pretrial discovery of information within the scope of the privilege. Clark v. District Court, 668 P.2d 3 (Colo. 1983).

The court of appeals erred in conducting an in camera review of the victim's mental health records since the victim did not waive her psychologist-patient privilege. Without a waiver, the records are not subject to review. People v. Wittrein, 221 P.3d 1076 (Colo. 2009).

Psychologist-patient privilege applies to the records of a therapist who is an unlicensed psychologist when such therapy is conducted under the supervision of a person authorized by law to conduct such therapy. People v. District Court, 719 P.2d 722 (Colo. 1986).

When physician-patient and psychologist-patient privileges are not waived, applicability of the privileges is not conditional on a judicial balancing of interests once privileges attach. Clark v. District Court, 668 P.2d 3 (Colo. 1983).

Mere filing of a pleading by a person protected by psychologist-patient privilege does not operate as a waiver. The appropriate inquiry under such circumstances should be whether the privilege holder has injected his physical or mental condition into the case as the basis of a claim or an affirmative defense. People v. District Court, 719 P.2d 722 (Colo. 1986); Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo. 2004).

When privilege holder does not place his or her physical or mental condition at issue and does not assert his or her physical or mental condition as an affirmative defense, privilege holder's answer cannot be fairly construed as a manifestation of his or her intent to forego confidentiality attaching to his or her communications to a treating psychologist or psychiatrist and is not inconsistent with a claim of privilege with respect to these communications. Clark v. District Court, 668 P.2d 3 (Colo. 1983); Hoffman v. Brookfield Republic, Inc., 87 P.3d 858 (Colo. 2004).

Psychotherapist-patient privilege is not automatically waived if a juvenile defendant requests a reverse-transfer hearing pursuant to § 19-2-517 (3)(b)(VI) . Because the proper inquiry to determine whether there was a waiver of privilege is whether a party injected his or her physical or mental health condition into the case, simply requesting a reverse-transfer hearing does not waive the privilege. Section 19-2-517 (3)(b)(VI) only requires that the trial court consider mental health records “made available”, that is, voluntarily waived by the privilege holder. People v. Johnson, 2016 CO 69, 381 P.3d 316.

Court must balance the competing interests of protecting the confidentiality of plaintiffs' communications with their treating therapists against defendant's interest in obtaining sufficient evidence to contest damage claims for mental suffering and emotional distress and should consider the flexible array of protective orders suggested by C.R.C.P. 26(c) to accommodate the needs of the party seeking discovery while protecting the legitimate interests of the parties opposing discovery. Bond v. Denver Dist. Ct., 682 P.2d 33 (Colo. App. 1984).

Defendant's constitutional right to confront adverse witnesses does not supersede a victim's rights under this section. The vague assertion that the victim may have made statements to her therapist that might possibly differ from the victim's anticipated trial testimony does not provide a sufficient basis to justify ignoring the victim's right to rely upon her statutory privilege. People v. District Court, 719 P.2d 722 (Colo. 1986); People v. Tauer, 847 P.2d 259 (Colo. App. 1993).

By taking advantage of opportunity to have an expert appointed by the court pursuant to § 19-3-607 , an individual submits to the disclosure of the evaluation to all parties and waives any psychologist-patient privilege which may have attached. People in Interest of T.S.B., 757 P.2d 1112 (Colo. App. 1988), aff'd, 785 P.2d 132 (Colo. 1990).

Testimony of victim in criminal case as to emotional effects of alleged assault did not operate as waiver of psychologist-patient privilege. People v. Silva, 782 P.2d 846 (Colo. App. 1989).

Psychologist-client privilege created in this section does not apply to information obtained and records prepared in evaluating a person who has been involuntarily detained pending judicial review of a psychologist's certification. People v. District Court, 797 P.2d 1259 (Colo. 1990).

Prior to 1989 amendment of § 19-3-311 , plain language of said section did not abolish psychologist-patient privilege for communications between social worker and client concerning child abuse or neglect. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

In order to harmonize potential statutory conflict between § 19-3-304 concerning required reporting of child abuse and this section prior to 1989 amendment to § 19-3-311 , § 19-3-304 required psychologists to report suspected child abuse to the appropriate authorities while subsection (1)(g) prohibited psychologists from testifying against their clients without consent. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Improper admission of privileged communications between social worker and defendant constituted harmless error due to other overwhelming evidence against defendant offered at trial. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Trial court's admission of child abuse reports by psychologist based upon privileged communications between psychologist and defendant did not constitute error because allowing privilege to prevent use of child abuse reports would defeat one of purposes of reports to aid in the investigation and prosecution of child abusers. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Tainted-fruit rationale applied to unauthorized disclosure. Where defendant sought records of alleged victim's psychologist based on information provided by the psychologist to a police officer in violation of the psychologist-patient privilege and included by the officer in his report, the records remained privileged notwithstanding the defendant's assertion that the psychologist was an “essential witness” to his defense. “The holder of the privilege should not suffer the consequences of either an accidental or intentional revelation of privileged matters by the treating professional.” People v. Tauer, 847 P.2d 259 (Colo. App. 1993).

A plain reading of this section and § 16-8-103.6 is that the attorney-client and the physician-patient privileges do not apply to communications made to physicians or psychologists who are eligible to testify concerning a defendant's mental condition once the defendant enters a mental condition plea or defense. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

A defendant who places his or her mental condition at issue waives the attorney-client and the physician-patient privileges. The prosecution may use the testimony of a physician retained by the defense even though the defense does not intend to use the physician at trial. In addition, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Court, 884 P.2d 286 (Colo. 1994).

Section 19-3-311 abrogates the psychologist-patient privilege, but only for communication that is the basis for a report of alleged child abuse to the county department of social services or local law enforcement. Dill v. People, 927 P.2d 1315 (Colo. 1996).

Testimony of psychologist concerning report of alleged child abuse filed with law enforcement was not a waiver of the psychologist-patient privilege because § 19-3-311 abrogates that privilege. Dill v. People, 927 P.2d 1315 (Colo. 1996).

Trial court properly refused defendant in sexual abuse proceeding access to psychologist's notes and reports from ongoing counseling sessions because they were protected under the psychologist-patient privilege. People v. Dill, 904 P.2d 1367 (Colo. App. 1995), aff'd, 927 P.2d 1315 (Colo. 1996).

Personal injury plaintiff with generic claims for mental suffering has not placed her mental condition at issue where the mental suffering alleged is incident to the plaintiff's physical injuries and does not exceed the suffering and loss an ordinary person would likely experience. Therefore, the trial court may not find an implied waiver of the plaintiff's physician-patient or psychotherapist-client privileges based on a claim for mental suffering damages and trial court erred in ordering that records related to plaintiff's psychiatric and marriage counseling be disclosed. Johnson v. Trujillo, 977 P.2d 152 (Colo. 1999).

Absent a clear waiver of psychologist-patient privilege, a trial court may not review even in camera documents related to a patient's treatment. People v. Sisneros, 55 P.3d 797 (Colo. 2002).

A conflict between the interests of a parent and his or her child may preclude the parent from waiving the child's psychologist-patient privilege. Since the child's mother was in the middle of a conflict between her child and her father and she was antagonistic toward the prosecution, she lacked the authority to waive the privilege. The decision of whether to waive the privilege was properly given to the child's guardian ad litem. People v. Marsh, 396 P.3d 1 (Colo. App. 2011), aff'd, 2017 CO 10M, 389 P.3d 100.

Guardian ad litem holds a child's psychotherapist-patient privilege in a dependency and neglect proceeding when neither the child nor the child's parent has the authority to hold the privilege because he or she is a party to the proceeding. The guardian ad litem, not the department of human services or the juvenile court, holds the privilege on behalf of the “best interests of the child”. L.A.N. v. L.M.B., 2013 CO 6, 292 P.3d 942.

Threatening communications made to a mental health provider that trigger the “duty to warn” statute are not confidential as a matter of law. Therefore, when the mental health provider discharges his or her duty to warn based on those communications, the threatening communications are not protected by the psychologist-patient privilege, and the therapist may testify to those threatening communications. People v. Kailey, 2014 CO 50, 333 P.3d 89.

X. VICTIM'S ADVOCATE.

Law reviews. For article, “The Use of Victim Advocates and Expert Witnesses in Battered Women Cases”, see 30 Colo. Law. 43 (Dec. 2001).

The victim advocate privilege in subsection (1)(k)(I) extends to records of service or assistance provided by the victim's advocate, because the records are a part of “any communication” made to the advocate by the domestic violence victim. People v. Turner, 109 P.3d 639 (Colo. 2005).

A defendant may not obtain records of any assistance, advice, or other communication provided by a victim's advocate to a victim unless the defendant demonstrates that the victim has waived the privilege. People v. Turner, 109 P.3d 639 (Colo. 2005).

The mere endorsement of a domestic violence expert by the prosecution cannot operate to waive the privilege. People v. Turner, 109 P.3d 639 (Colo. 2005).