NOTICE TO CLIENTS OR PROSPECTIVE CLIENTS
IMPORTANT - READ THIS CAREFULLY

        Effective January 1, 1993 - under the Colorado Rules of Professional Conduct (C.R.C.P.) if an attorney is aware of prior or subsequent arrest(s), criminal charge(s) or conviction(s) or other litigation or bad acts, the disciplinary rules place an affirmative duty on all attorneys to inform the court of relevant facts not before the judge, regardless of whether a litigant has given misinformation or not. Put simply, DEFENSE ATTORNEYS ARE NOW REQUIRED TO INFORM THE SENTENCING JUDGE AND OPPOSING COUNSEL OF PRIOR OFFENSES, ARRESTS OR BAD ACTS WITHIN THE ATTORNEY'S KNOWLEDGE.  Attorneys' obligation to deal fairly and with candor to the court supercedes the attorney - client privilege regarding communications.  In short,  if an attorney has knowledge that a client is giving false information or relevant information is unknown to the court, these disciplinary rules required counsel to correct the records or to withdraw representation.  Withdrawal may be the only viable option.

C.R.C.P. §1.2(d)&(e) (scope and objectives of representation - fraud & prohibited conduct), §1.6 (confidentiality of information - attorney-client privilege), §3.1 (meritorious clams and contentions) and in particular, §3.3 (candor toward the tribunal - disclosure requirements). I also reviewed statutes, editor’s notes and annotations CRS 13-90-107(1)(b) (who may not testify without consent - attorney-client privilege).

        The Colorado Supreme Court disciplinary rules govern the conduct of all attorneys licensed in Colorado; this is not unique to my office nor to criminal defense attorneys - the rules apply to all Colorado attorneys. If the ethical and disciplinary rules are violated, proceedings are available to remove, suspend or censure every attorney's license to practice law.

The most common circumstances in which this conflict may arise would be:
        1.  Prior DUI or alcohol related traffic conviction out of state and no felony convictions.  Absent a felony charge or conviction, the DUI may not show up on an NCIC records search.  If the out of state DMV has cleared you as eligible for a license, there would be nothing to show up in the DMV national holds registry.  Given that there is no national DMV record except for a.) adverse action holds and b.) commercial driver's license (CDL), the prior offense may be unknown to Colorado courts, prosecutors and probation officers.
        2.  Subsequent DUI or alcohol related traffic charges arising after entry of plea and alcohol evaluation, but before sentencing hearing.  All counties are linked into the Colorado Judiciary system - all types of cases including felony, misdemeanor and traffic cases.  Courts, prosecutors and probation officers have on-line access to judicial records.  However, if the new charges arose after plea and evaluation, the last opportunity to run a computer records check would be by the judge immediately before or at sentencing.  The judge may or may not search records.
        3.  In family law matters, an affirmative disclosure is required at suit commencement regarding prior allegations of domestic violence or child abuse allegations.  A discovery request would not be uncommon regarding other offenses or allegations, such as drugs, theft, etc.
        4.  This may also arise regarding family law or debtor claims of unfair debt collection practices.

        As a defense attorney, when a client has remained silent and has not perpetrated fraud on the court, I do not agree that confidentiality under the attorney-client relation is subordinate to the duty as an officer of the court to affirmatively inform the judge of prior criminal offenses. Nor do I believe defense attorneys should be obligated to disclose history information received in a confidential setting. My opinion, though, is not important. I am an ethical attorney.  The rules exist and I will not violate.  In fulfillment of my ethical obligations, even without specific knowledge, I recommend disclosure of prior or subsequent conviction(s), arrest(s) or bad act(s).

        Shortly after being retained, but generally not thereafter due to cost, attorney runs a client background search under the exact name provided by client.  I have no knowledge or reason to know if such matters are not disclosed by client, are not found in a records search and are not found in discovery provided by the prosecution or opposing counsel.

        Therefore, IF YOU HAVE A PRIOR OFFENSE WHICH YOU DO NOT WISH DISCLOSED TO PROSECUTORS, TO OPPOSING COUNSEL OR TO THE COURT, DO NOT INFORM THE ATTORNEY OR ANY STAFF IN THIS OFFICE. You will be asked relevant questions by the attorney or his staff. SIMPLY STATE YOU DO NOT WISH TO DISCUSS THOSE MATTERS AND NO FURTHER INQUIRY WILL BE MADE. No conclusion will be drawn from your request that inquiry be avoided. We will simply not discuss the subject.

        IMPORTANT.  It is very dangerous for your attorney to have limited knowledge of relevant facts. The last place counsel should be educated is in the courtroom, by a prosecutor or opposing counsel. You may needlessly have a probation or deferred sentence revoked or consecutive jail sentences imposed. However, given the ethical and disciplinary rules which now govern Colorado attorneys, you may not wish to tell counsel all relevant facts, such as a prior conviction or allegation. This attorney recommends disclosure of prior offenses or other bad acts. If you give false information to the court, probation department, prosecutors or opposing counsel and are caught, sanctions will be extreme. Whether or not to disclose is the client's decision. If you exercise your right to remain silent, no false information is given.

        In family law matters, this attorney specifically recommends that the matter be discussed with counsel prior to initiation of any suit or defense.  No one knows your prior history better than a spouse or significant other - they simply know where the skeletons are buried.  Better practice is to deal with those skeletons affirmatively rather than to attempt keeping them secreted.

        In debt collection matters, this attorney emphatically recommends that the matter be discussed with counsel prior to initiation of any suit.  Whereas criminal defendants have no choice but to participate in the justice system, creditors can generally decide whether to commence litigation or not.  It is possible the prudent business decision may be to charge off the account to bad debt and a collection learning experience.  

        The above information has been provided to place you on notice that the attorney-client privilege no longer makes a lawyer's office "safe haven" for your statements pertaining to prior offenses or allegations which you do not want disclosed.  This is similar to the criminal case "Miranda warning."

        At every first interview, all prospective clients are asked to sign a copy of a similar notice indicating the prospective client received a copy and had adequate time to read it before seeing the attorney or discussing the facts of the person's case.

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Topical Website Initial Publication Date: January 20, 2004