Facts
- Ann Owens sued Denver Tramway Company for personal injuries allegedly caused by negligent operation of a Denver cable car while she was alighting.
- Shortly after the accident, Owens met with attorney Mead to obtain professional legal advice about the accident.
- Owens and Mead had no prior relationship; Owens paid no fee; and no agreement for representation was made.
- At trial, Mead testified only about the fact and circumstances of the consultation.
- The defense sought to ask Mead whether Owens’s trial testimony materially differed from what she told him during the consultation.
- The trial court sustained Owens’s objection and prevented Mead from answering.
Issues
- Whether confidential communications to a lawyer consulted for legal advice are protected by attorney–client privilege even if the lawyer is not retained and no fee is paid.
- Whether the privilege bars an opposing party from eliciting testimony from the consulted lawyer to impeach the client by showing prior inconsistent statements, including by asking whether trial testimony “materially differed” from the consultation.
Decision
- The Colorado Supreme Court affirmed the judgment for Owens.
- The court held that Owens’s communications to Mead during the consultation were privileged.
- The trial court did not err by refusing to permit Mead to answer the impeachment question, because it would disclose the substance of privileged communications.
Legal Principles
- Attorney–client privilege protects confidential communications made to an attorney for the purpose of obtaining legal advice.
- Privilege may attach when a person consults an attorney in a professional capacity with an expectation of confidentiality, even without a fee, retainer, or continuing employment.
- Privilege bars indirect disclosure of the substance of the communication; a question framed as whether testimony “materially differed” can still require revealing privileged content.
- A party may not use the consulted attorney as a witness to impeach the client with confidential statements made in seeking legal advice.
Conclusion
Confidential statements made during a preliminary legal consultation are privileged even absent payment or retention, and an opponent cannot impeach the client by questioning the consulted attorney in a way that would reveal the substance of those statements.