author: Justice RICE

text:
    ALLIANCE CONSTRUCTION SOLUTIONS, INC., Plaintiff, v. DEPARTMENT OF CORRECTIONS, Defendant and Counterclaim Plaintiff, The American Insurance Company, a subsidiary of Fireman's Fund Insurance Company, Additional Counterclaim Defendants.
    No. 02SA53.
    Supreme Court of Colorado.
    Sept. 9, 2002.
    Rehearing Denied Oct. 7, 2002.

      Faegre & Benson, LLP, Janet Lawler McDaniel, J. David Arkell, Denver, Colorado, Attorneys for Alliance Construction Solutions, Inc.
    Hall & Evans, LLC, Alan Epstein, Jeffery B. Stalder, Denver, Colorado, Ken Salazar, Attorney General, Karen A. Levehuk, Assistant Attorney General, Litigation Section, Denver, Colorado, Attorneys for Department of Corrections.
    Myer, Swanson, Adams & Wolf, Harmon S. Graves, Denver, Colorado, Attorneys for The American Insurance Company.

       Justice BENDER does not participate.

   Justice RICE

delivered the Opinion of the Court.

The petitioner, Department of Corrections, (DOC), initiated this original proceeding pursuant to C.A.R. 21, seeking relief from a trial court order compelling the DOC to disclose documents and communications between its legal counsel and its independent contractor, CRSS Constructors, Inc., (CRSS). At issue in the underlying suit is the DOC's alleged wrongful termination of Alliance Construetion Solutions' (Alliance) contract to construct the Trinidad Correctional Facility in Trinidad, Colorado. CRSS, and specifically, Dana Dietz, an employee of CRSS, served as the DOC's project manager for construction at the Trinidad facility and therefore has knowledge about the decision to terminate. During discovery, Alliance sought communications between the attorney representing the DOC and Ms. Dietz. The trial court granted Alliance's motion to compel disclosure of the documents and communications, rejecting Petitioners' argument that the attorney-client privilege protects the communications between Ms. Dietz and the DOC's legal counsel. The trial court ruled that "[the Defendant has failed to establish that there is [an] attorney client relationship between DOC and Dana Dietz."

We issued a rule to show cause why mandamus should not issue to require the trial court to vacate its order granting Alliance's motion to compel. Today, we adopt a four-part test to determine whether communications between a governmental entity's independent contractor and the entity's counsel are protected by the attorney-client privilege. First, we hold that for the privilege to apply 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 party seeking to exercise the privilege satisfies this preliminary requirement, we hold that the entity must also show: (2) that the communication was made for the purpose of seeking or providing legal assistance; (8) that the subject matter of the communication was within the seope of the duties provided to the entity by its employee, agent, or independent contractor; and (4) that the communication was treated as confidential and only disseminated to those persons with a specific need to know its contents.

Applying this test to the facts of this case, we conclude that Ms. Dietz is an independent contractor with a significant relationship to the DOC and to its involvement with the Trinidad project, which is the subject matter of the DOC's need for legal services. Thus, we hold that the relationship between CRSS and the DOC is one which satisfies the first part of the test we articulate today. We also hold that the communications between Ms. Dietz and the DOC's counsel satisfy the remaining elements of the test: (2) the communications were made for the purpose of seeking or providing legal assistance; (8) the subject matter of the communications was within the scope of Ms. Dietz's duties as project manager of the Trinidad site; and (4) the DOC's legal counsel regarded the communications as confidential and treated them as such. Accordingly, we make the rule absolute and direct the trial court to vacate its order.

I. ORIGINAL JURISDICTION

Initially, we note that discovery orders are interlocutory in nature and generally not reviewable in an original proceeding. Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044, 1046 (Colo.1986). However, we may exercise our original jurisdiction when a pre-trial ruling places a party at a "significant disadvantage in litigating the merits of the controversy" and "conventional appellate remedies would prove inadequate." Leaffer v. Zarlengo, 44 P.3d 1072, 1077 (Colo.2002). Moreover, we have exercised our original jurisdiction to address issues of "significant public importance which we have not yet examined." Id.

The legal question of whether the attorney-client privilege protects communications between a governmental entity's attorney and its independent contractor is a matter of significant importance and one of first impression. In addition, the trial court's order compelling the DOC to produce documents and communications it claims are protected by the attorney-client privilege would place the DOC at a significant disadvantage in defending against the wrongful termination suit, and the conventional appeals process would not provide an adequate remedy since the issue will likely evade review in any eventual appeal. Accordingly, we exercise our original jurisdiction in this case.

II FACTS

The issue in this case arises out of a lawsuit filed in connection with the construction of the Trinidad Correctional Facility. In November 1997, the DOC contracted with Alliance for the construction of the Trinidad prison. Nearly a year later, the DOC terminated its contract with Alliance, and Alliance commenced this action, alleging wrongful termination.

A legislative enactment, now repealed, provided the basis for the relationship between the DOC and CRSS. The statute called for the Department of Personnel to contract with firms or persons to provide project management services between the various contractors and the DOC. § 17-1-104.4, 6 C.R.S. (2000) (repealed 2000). Ms. Dietz is an employee of CRSS, which serves as the DOC's independent contractor. As project manager for the Trinidad Correctional Facility, Ms. Dietz is intimately involved with the specific construction project that is the focus of the underlying litigation. Ms. Dietz has been furnished an office at the Department of Corrections Headquarters Facility in Colorado Springs and works closely with the contractors and surety on the project.

Though the contract between the DOC and CRSS makes clear that CRSS is an independent contractor of the DOC and expressly not an employee or agent of the DOC, the Director of Facilities Services for the DOC}, as well as other members of the DOC, regard Ms. Dietz as the equivalent of a DOC employee. Ms. Dietz has educated the DOC's counsel on conditions at the site, visited the site with counsel, and served as counsel's primary contact on many of the specific issues involved in the litigation. Moreover, as the "eyes and ears" of the Trinidad project, Ms. Dietz possesses information known by no one else.

III. ANALYSIS

In this case, we must determine whether the attorney-client privilege protects communications between a governmental entity's counsel and the entity's independent contractor. Specifically, we must determine whether the attorney-client privilege protects documents and communications between the DOC's legal counsel and Dana Dietz, an employee of CRSS and the principal project and litigation contact for the DOC's counsel. While we have considered whether the attorney-client privilege protects communications between corporate employees and officers and the corporation's legal counsel, Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044 (Colo.1986), we have never addressed the precise issue presented in this case. Thus, to inform our decision, we will first briefly review the nature of the attorney-client privilege. We will then analyze the attorney-client privilege in the corporate setting because it is closely analogous to the issue in the case presented here: both involve organizational clients, in one case a corporate entity and in the other a governmental one. Moreover, both involve communications between the entity's counsel and individuals who are associated with the entity and the transaction that is the subject of the entity's need for legal services in such a way that they can provide factual information needed for sound legal advice. Finally, based on these principles, as well as our review of relevant case law from our sister jurisdictions, we will determine whether application of the attorney-client privilege asserted here, involving communications between a governmental entity's counsel and the entity's independent contractor, is warranted.

A. THE ATTORNEY-CLIENT RELATION

We begin with a general overview of the law pertaining to the attorney-client privilege. The privilege protects communications between attorney and client relating to legal advice. Wesp v. Everson, 33 P.3d 191, 196 (Colo.2001). Colorado codified the common law attorney-client privilege at section 13-90-107(1)(b), 5 C.R.S. (2001), which provides:

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.

Attorneys serve the useful function of helping clients to navigate our often complex legal system. In order to provide effective legal advice, an attorney must have a full understanding of the facts underlying his representation. Accordingly, we have emphasized that protecting confidential communications between attorney and client "facilitates the full development of facts essential to proper representation of a client." Gordon v. Boyles, 9 P.3d 1106, 1123 (Colo.2000); Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d at 1047. Indeed, without the protection the privilege provides to such confidential communications, "clients may be reluctant or unwilling to seek legal advice or to confide fully in their attorney." Wesp, 33 P.3d at 196. Thus, we have said that "the right of parties within our justice system to consult professional legal experts is rendered meaningless unless communications between attorney and client are ordinarily protected from later disclosure without client consent." Id.

Because the effectiveness of legal representation depends in part on the attorney's ability to gain a full understanding of the factual scenario underlying the representation, we have concluded that the privilege protects not only information and advice communicated from the attorney to the client, but also communications to the attorney to enable him to give sound and informed legal advices. Gordon, 9 P.3d at 1123 (citing Upjohn v. United States, 449 U.S. 383, 390, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)); Nat'l Farmers, 718 P.2d at 1049 (citing Upjohn, 449 U.S. at 390-91, 101 S.Ct. 677).

B. ATTORNEY-CLIENT PRIVILEGE IN CORPORATE SETTING

While the attorney-client privilege typically protects communications between an individual client and his counsel, the privilege is also available to corporations. A v. Dist. Court, 191 Colo. 10, 20, 550 P.2d 315, 323 (1976). In Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), the United States Supreme Court analyzed the scope of the attorney-client privilege in the corporate context. Although the application of the attorney-client privilege in the corporate setting is not directly at issue in this case, the Upjohn court's reasoning and its explanation of the purpose behind the attorney-client privilege-which we adopted in National Farmers and Gordon-directly impacts our decision in this case. Thus, we begin by outlining the scope of the attorney-client privilege in the corporate setting.

In Upjohn the United States Supreme Court considered whether communications between a corporation's employees and the corporation's legal counsel were protected by the attorney-client privilege. The IRS sought disclosure of questionnaires cireulated to managers and memorandums or notes of interviews between corporate counsel and employees of the corporation resulting from an internal investigation into "questionable payments" to foreign government officials. Upjohn, 449 U.S. at 386-88, 101 S.Ct. 677. Upjohn refused to produce the documents, arguing that they were protected by the attorney-client privileget. Id. at 388, 101 S.Ct. 677.

In the case below, the Sixth Circuit held that the attorney-client privilege did not apply "[tlo the extent that the communications were made by officers and agents not responsible for directing Upjobhn's actions in response to legal advice ... for the simple reason that the communications were not the 'client's' " United States v. Upjohn Co., 600 F.2d 1223, 1225 (6th Cir.1979). Thus, the Sixth Cireuit adopted what had become known as the "control group" test. This test provides that in the corporate setting the attorney-client privilege only protects communications between corporate counsel and "those officers, usually top management, who play a substantial role in deciding and directing the corporation's response to the legal advice given." Id. at 1226. Only these senior management, the Sixth Cireuit reasoned, can be "said to possess an identity analogous to the corporation as a whole" and therefore be considered to communicate as the corporate client. Id.

The Supreme Court granted certiorari to determine the scope of the attorney-client privilege in the corporate setting and held that the communications at issue were protected by the privilege. In fact, the Court emphatically rejected the control group test as too narrow; however, it explicitly refused to adopt a specific test to determine the parameters of the privilege in the corporate setting, instead relying on several factors to determine that the privilege applied in the case at issue. Id. at 395-96, 101 S.Ct. 677. The court concluded: (1) that the information, not available from higher management, was needed to supply a basis for legal advice; (2) that the communications concerned matters within the scope of the employees' corporate duties; (3) that the employees were aware that they were being questioned so that the corporation could obtain legal advice; and (4) that the communications were considered "highly confidential" when made and were kept confidential by the company. Id. at 394-95, 101 S.Ct. 677.

However, while the Court declined to adopt a specific test to apply in the corporate context, the reasons the Court rejected the "control group" test inform our analysis of the applicability of the attorney-client privilege in the independent contractor setting. In rejecting the control group test, the Court first noted that "[the first step in the resolution of any legal problem is ascertaining the factual background and sifting through the facts with an eye to the legally relevant." Upjohn, 449 U.S. at 390-91, 101 S.Ct. 677 (citing ABA Code of Professional Responsibility, Ethical Consideration 4-1). To do this, the Supreme Court reasoned that a corporate attorney may need " 'to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. " Id. (quoting Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 608-09 (8th Cir.1978)). Thus, the Court concluded that the control group test "frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation." Upjohn, 449 U.S. at 391-92, 101 S.Ct. 677.

In National Farmers, we applied Upjohn to determine whether the attorney-client privilege applied to protect a memorandum regarding a lease guaranty insurance policy against disclosure. Petitioner's outside counsel prepared the memorandum to inform the client's general counsel of the facts underlying the issuance of the policy and conclusions regarding whether a claim under the policy should have been paid. Nat'l Farmers, 718 P.2d at 1045-46. In preparing the memorandum, the attorneys conducted interviews with officers and employees of the corporation. Id. at 1049.

Though we concluded that none of the factors on which the Upjohn court relied were present in National Farmers, our analysis in National Farmers adopted the factors set forth in Upjohn and applied them to determine whether the attorney-client privilege protected communications between a corporation's officers and employees and corporate counsel. Indeed, we adopted the Upjohn court's reasoning that the attorney-client privilege protects communications made to the attorney to enable him to give sound and informed legal advice. Nat'l Farmers, 718 P.2d at 1049 (citing Upjohn, 449 U.S. at 390-91, 101 S.Ct. 677); see also Gordon, 9 P.3d at 1123 (citing Upjohn, 449 U.S. at 390, 101 S.Ct. 677); Denver Post Corp. v. University of Colorado, 739 P.2d 874, 880-81 (Colo.Ct.App.1987) (holding that communications between the University of Colorado's counsel and former employees of the University concerning activities during their period of employment may be protected by the attorney-client privilege under the rationale presented in Upjohn, but holding that the University waived the privilege by disclosing the documents); Shriver v. Baskin-Robbins Ice Cream Co., 145 F.R.D. 112, 114 (D.Colo.1992) (citing Upjohn and ruling that "communications between corporate counsel and company personnel are privileged so long as they concern matters within the seope of the employee's corporate duties").

The Supreme Court's reasoning-and in turn our reasoning in National Farmers and Gordon-emphasizes the importance of applying the privilege to protect the ability of attorneys to garner needed information to provide sound legal advice. Thus, the purpose underlying the application of the attorney-client privilege in the corporate context informs our analysis of whether the privilege applies to protect communications between a governmental entity's counsel and its independent contractor.

C. THE ATTORNEY-CLIENT PRIVILEGE IN THE GOVERNMENTAL INDEPENDENT CONTRACTOR SETTING

With the foregoing principles in mind, we now turn to the ultimate question presented in this case: whether the attorney-client privilege protects communications between a governmental entity's counsel and the entity's independent contractor. Specifically, we must consider whether the purposes supporting the attorney-client privilege-including the attorney's need to gather relevant information in order to provide sound legal advice-are supported by applying the privilege to protect communications between governmental counsel and persons who, though not formally employed by the governmental entity, have the kind of significant relationship with the entity that makes it appropriate to consider them functional employees for the purposes of the privilege.

Although this Court has never considered whether the attorney-client privilege applies in the governmental independent contractor setting, the Eighth Cireuit has analyzed a nearly identical question in In re Bieter, Co., 16 F.3d 929 (8th Cir.1994). The question presented in Bieter was whether communications between a client's independent contractor and the client's counsel or communications merely disclosed to the independent contractor necessarily fell outside of the seope of the attorney-client privilege because the contractor was neither the client nor an employee of the client. Bieter, 16 F.3d at 934. Because we find this opinion to be persuasive, we will discuss it in some detail.

Bieter was a partnership formed to develop a parcel of farm land. The partnership retained an independent contractor to provide advice and guidance regarding commercial and retail development in the area. The contractor worked out of Bieter's office and interacted daily with the principals of the partnership to attempt to develop the parcel of land. Bieter, 16 F.3d at 933. A contract between the parties clarified that the contractor was expressly not an agent, employee, or partner of Bieter. Id. at 983-34. However, according to the independent contractor, he was viewed by government officials, potential tenants, the media, and others as a representative of Bieter. Id. at 984.

Ultimately, Bieter confronted various obstacles to the land development and resorted to legal action. Id. at 980. During discovery, respondents sought disclosure of certain documents that Bieter claimed were protected by the attorney-client doctrine. A magistrate held that the materials were not protected because they had been disclosed to the independent contractor, and the district court summarily affirmed the order. Id. at 981.

To determine whether the attorney-client privilege protected the communications at issue, the Bieter court considered two distinct questions. First, it examined whether the independent contractor's relationship to the client was the type that justified the application of the privilege. Concluding that it did, the court next considered whether the communications satisfied the test it had set out in Diversified Indus., Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977), to analyze the applicability of the privilege in the corporate-employee context. Bieter, 16 F.3d at 938.

In analyzing these questions, the court relied on its earlier decision in Diversified, as well as the United States Supreme Court's decision in Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981) that had both analyzed a similar question: whether the attorney-client privilege protects communications between a corporation's employees and corporate counsel. The Eighth Cireuit concluded: "[Ilt is inappropriate to distinguish between those on the client's payroll and those who are instead, and for whatever reason, employed as independent contractors. Such a distinction is consistent with neither the Supreme Court's decision in Upjohn nor our decision in Diversified." Bieter, 16 F.3d at 937.

Since the Upjohn Court emphasized that "Itlhe lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be earried out," Bieter reasoned that refusing to apply the privilege to protect communications between a client's independent contractor and the client's counsel would frustrate the very purpose of the privilege as explicated by Upjohn. In other words, a failure to extend the attorney-client privilege to the independent contractor context would limit the ability of the lawyer to ascertain needed facts for sound representation.

Thus, the Bieter court concluded " 'at times there will be potential information-givers who are not employees of the corporation but who are nonetheless meaningfully associated with the corporation in a way that makes it appropriate to consider them 'insiders' for purposes of the privilege" " Bieter, 16 F.3d at 986 (quoting John E. Sexton, A Post Upjohn Consideration of the Corporate Attorney Client Privilege, 57 N.Y.U. L.Rev. 448, 490 (1982). Accordingly, the Eighth Circuit ruled that the attorney-client privilege should extend to relationships where the information-giver is "an employee, agent, or independent contractor with a significant relationship to the corporation and the corporation's involvement in the transaction that is the subject of legal services." Bieter, 16 F.3d at 937 (quoting Sexton, 57 N.Y.U. L.Rev. at 487).

In sum, since the privilege exists to protect not only information communicated from attorney to client, but also information provided to the attorney so that he may give sound legal advice, the Eighth Cireuit reasoned that no principled basis existed to distinguish between a client's employee and its independent contractor. Both may have extremely sensitive and important information that must be communicated to the lawyer in order for him to provide effective representation. Bieter, 16 F.3d at 937. Thus, the court held that the Diversified test applied not only in the corporate employee context, but also in the independent contractor context. Id. at 937-38.

In applying these legal principles, the Bister court first held that the client's relationship with its independent contractor justified application of the privilege. The contractor had been involved on a daily basis with the partnership's principals and on behalf of the partnership in the unsuccessful development that served as the basis for the litigation. Moreover, the contractor had been intimately involved with the sole objective of the partnership; to develop the parcel of land. Importantly, as the partnership's sole representative at meetings with potential tenants and other officials, he likely possessed information that no one else knew. Thus, the Bieter court concluded that the contractor "was in all relevant respects the functional equivalent of an employee." Bieter, 16 F.3d at 938.

Next, the Bister court applied the Diversified test, which it had originally developed to determine whether communications between a corporation's employees and corporate legal counsel were protected. The test provides that the attorney-client privilege protects communications if: (1) the communication was made for the purpose of securing legal advice; (2) the person making the communication did so at the direction of his superior; (8) the superior requested that the communication be made so that the client could secure legal advice; (4) the subject matter of the communication was within the scope of the representative's duties; and (5) the communication was not disseminated beyond those persons, who because of the structure of the client's operations, needed to know its contents. Bieter, 16 F.3d at 938-39. The court held that each of these clements were satisfied, and therefore, the privilege applied to communications made between the client's independent contractor and the client's attorney and that the disclosure of otherwise privileged documents to the independent contractor in the course of his confidential cormamunications with counsel did not destroy the privilege. Id. at 989-40; see also Energy Capital Corp. v. United States, 45 Fed. Cl. 481, 491-92 (Fed.Cl.2000) (adopting the rule recognized in Bieter, but ruling that it could not decide whether the relationship between the client and its agents met the Bieter requirements because the plaintiff failed to present appropriate facts) In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213, 219 (S.D.N.Y.2001) (following Bieter and concluding that client's independent public relations firm was the functional equivalent of an in-house public relations department and therefore communications between it and the client or client's counsel were protected by the attorney-client privilege); McCaugherty v. Siffermann, 132 F.R.D. 234, 239 (N.D.Cal.1990) (finding attorney-client privilege inapplicable for other reasons, but relying on Upjohn and concluding that because independent consultant acted within scope of employment and under direction of supervisor, no principled reason existed to distinguish between the independent consultant and an employee for purposes of the attorney-client privilege). But see Miramar Constr. v. Home Depot, Inc., 167 F.Supp.2d 182, 185 (D.P.R.2001) (refusing to apply the attorney-client privilege to protect communications between corporate counsel and the corporation's former independent contractor).

We find the Bieter court's analysis persuasive and conclude that there are circumstances when the attorney-client privilege protects communications between a governmental entity's independent contractor and the entity's counsel. Moreover, this conclusion comports with our reasoning in Gordon v. Boyles, 9 P.3d 1106 (Colo.2000) and Nat'l Farmers Union Prop. & Cas. Co. v. Dist. Court, 718 P.2d 1044 (Colo.1986). Because we have concluded that the attorney-client privilege protects communications made to the attorney in order for him to provide sound legal advice, Gordon, 9 P.3d at 1123; Nat'l Farmers, 718 P.2d at 1049, we agree with the Bieter court that a formal distinction between an employee and an independent contractor conflicts with the purposes supporting the privilege. An independent contractor with a meaningful relationship to the governmental entity may possess important information needed by the attorney to provide effective representation.

Accordingly, we hold that for the attorney-client privilege to apply in the context at issue, 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. Thus, the type of relationship between the client and the information-giver must be closely analyzed to determine the application of the privileges.

If the party seeking to protect the communications satisfies the first part of the test, we also hold that the entity must show three additional elements. First, it must demonstrate that the communication was made for the purpose of seeking or providing legal assistance. We use the term "assistance" rather than the Bieter court's term "advice" because we believe the term "advice" could be read too narrowly. See Sexton, supra at 490 (The term advice "though understandable, overlooks the fact that attorneys perform professional services that often do not entail advice to the client-for example, the administration of an estate or the litigation of an antitrust matter."); see also Restatement (Third) of the Law Governing Lawyers § 68 (2000) (delineating the general attorney-client privilege and stating that for it to apply the communication must be made between privileged persons in confidence for the purpose of obtaining or providing legal assistance for the client) (emphasis added).

Second, we hold that the entity must show that the subject matter of the communication was within the seope of the duties provided to the entity by its employee, agent, or independent contractor. Although the Bieter court also required the party seeking to apply the privilege to show that the person making the communication did so at the direction of the superior and that the superior requested that the communication be made so that the client could secure legal advice, we believe these two elements of the Bicter test do not comport with the purposes underlying the privilege. We agree with Sexton's analysis that employees, agents, and independent contractors should not be discouraged from independently communicating with the attorney. Furthermore, we agree that "a requirement that communication with the attorney be authorized by a superior, if taken literally, would bar application of the privilege to communications with former employees ... even former employees who were directly involved in matters under investigation by the attorney." Moreover, there may be times when an attorney may speak with the independent contractor, agent, or employee directly, without obtaining the superi- or's consent or direction. Sexton, 57 N.Y.U.L.Rev. at 499-500. If we were to require that the information-provider do so only at the direction of his superior this would conflict with our reasoning that the attorney-client privilege protects communications necessary to provide the factual basis on which to provide sound legal assistance.

Finally, we hold that an entity seeking to apply the privilege in the independent contractor context must show that the communication was treated as confidential and only disseminated to those persons with a specific need to know its contents. In fact, we have emphasized that the " (privilege applies only to statements made in cireumstances giving rise to a reasonable expectation that the statements will be treated as confidential" " Gordon, 9 P.3d at 1123 (quoting Lanari v. People, 827 P.2d 495, 499 (Colo.1992)).

IV. APPLICATION

In analyzing whether the DOC has shown that the communications at issue are protected by the attorney-client privilege, we begin by considering the relationship between Ms. Dietz and the DOC. Here, it is clear that Ms. Dietz, though an independent contractor of the DOC, has a significant relationship to the DOC and its involvement with the Trinidad project, which is at issue in the underlying litigation. As the project manager for the Trinidad Correctional Facility project, Ms. Dietz is intimately involved with the factual investigation of the claims and defenses of the parties involved in the litigation. Ms. Dietz educated the DOC's counsel on conditions at the site, visited the site with counsel, and served as counsel's primary contact on many of the specific issues involved in the litigation. In addition, as the "eyes and ears" of the Trinidad project, Ms. Dietz possesses information that no one else knows. Although the contract between CRSS (Ms. Dietz's employer) and the DOC makes clear that CRSS is not an agent or employee of the DOC, Ms. Dietz has been furnished an office at the Department of Corrections Headquarters Facility in Colorado Springs and has access to DOC staff, She represents the DOC at meetings with the contractor or surety and is regarded by Mr. Nolin Ren-frow, the Director of Facilities Services for the DOC, as well as other members of the DOC, as the equivalent of a DOC employee. Ms. Dietz has provided the DOC's counsel with factual information needed to obtain satisfactory legal advice. Accordingly, it is clear that Ms. Dietz bas a significant relationship with the DOC and its involvement in the Trinidad project, and thus, the relationship between CRSS and the DOC satisfies the first element of the test we articulate today.

Second, the affidavits submitted by Petitioners indicate that Ms. Dietz served as the primary contact for the DOC's counsel on many of the issues in litigation. Indeed, the DOC's attorney's affidavit stated that Ms. Dietz was the primary source of information on which legal decisions were made. Thus, Petitioners have shown that the communications were made primarily for the purpose of seeking or providing legal assistance.

Third, the subject matter of the communications was certainly within the subject matter of the independent contractor's duties. As noted above, Ms. Dietz served as the project manager for the Trinidad Correction, al Facility,. This construction was the subject matter at issue in the litigation and the topic of the communications between Ms. Dietz and the DOC's counsel. Indeed, Ms. Dietz educated counsel on conditions at the site and served as counsel's primary contact on many of the specific issues involved in the litigation. Thus, it is clear that the topic of communications was within Ms. Dictg's duties as project manager.

Finally, the DOC's attorney's affidavit indicates that counsel understood that Ms. Dietz served as a representative of the client for purposes of communicating the facts necessary to provide effective legal assistance. In fact, counsel stated that she intended to keep her conversations with Ms. Dietz confidential. Moreover, because counsel understood her communications with Ms. Dietz to be confidential she disclosed highly confidential information to Ms. Dietz in order to provide the DOC reliable legal advice. Therefore, the DOC has met the final confidentiality requirement.

Accordingly, Petitioners have satisfied every clement of the test we adopt today. First, CRSS is an independent contractor with a significant relationship to the DOC and its litigation concerning the Trinidad project. Thus, the parties' relationship is the type justifying the application of the attorney-client privilege. Second, the purpose of the communications was to gain or provide legal assistance: Ms. Dietz communicated to counsel in order to give her the factual background of the Trinidad project, at issue in the litigation. Third, the subject matter of the communication was clearly within the scope of Ms. Dietz's responsibilities as project manager. Finally, the communications were considered confidential and treated as such.

v. CONCLUSION

We hold that the attorney-client privilege protects the communications between CRSS and the DOC. We make the rule absolute and direct the trial court to vacate its order compelling Petitioners to disclose communications and documents between Ms. Dietz and the DOC.

Justice BENDER does not participate.

      . The trial court record in this case is not before us. We rely upon the briefs of the parties, the available pleadings and motions, and copies of the trial court's pre-trial orders for the facts of this case.

      . ''The objectives of the attorney-client privilege, including the special objectives relevant to organizational clients, apply in general to governmental clients. The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture." Restatement (Third) of the Law Governing Lawyers § 74 cmt. b (2000).

      . However, it is important to note that the privilege only protects against disclosure of communications and does not protect the underlying facts on which the communication is based. In other words, "the client may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney." Nat'l Farmers, 718 P.2d at 1049 n. 3.

      . Upjohn also argued that the documents were protected by the work product doctrine. That argument is not relevant for the purposes of this case.

      . We note that while we have relied on cases from the corporate or partnership context as support for our opinion, we find no reason to differentiate between these entities and a governmental client. Rather, we agree with the drafters of the Restatement of the Law Governing Lawyers that: "The objectives of the attorney-client privilege, including the special objectives relevant to organizational clients, apply in general to governmental clients. The privilege aids government entities and employees in obtaining legal advice founded on a complete and accurate factual picture. Communications from such persons should be correspondingly privileged." Restatement (Third) of the Law Governing Lawyers § 74 crat. b (2000). A different rule may apply, however, if one agency of government claims the privilege in resisting a demand for information from another. We do not analyze that issue in this opinion.

      . Our application of the test we articulate today is supported by [acts from affidavits submitted by Petitioners, including sworn statements by Ms. Dietz, DOC's counsel, and Mr. Nolin Renfrow, the Director of Facilities Services for the DOC.


source: Caselaw Access Project

author:
      Justice MARTINEZ
      Justice KOURLIS

license: Public Domain

text:
    In re The PEOPLE of the State of Colorado, Plaintiff, v. Robert HARLAN, Defendant.
    No. 01SA356.
    Supreme Court of Colorado, En Banc.
    Sept. 16, 2002.
    Rehearing Denied Oct. 7, 2002.

      Robert S. Grant, District Attorney, Steven L. Bernard, Assistant District Attorney, Brighton, Colorado, Attorneys for Plaintiff.
    David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Chief Appellate Deputy, Denver, Colorado, Attorneys for Defendant.

       Justice KOURLIS and Justice RICE would grant the petition; Justice BENDER and Juustice COATS do not participate.

   Justice MARTINEZ

delivered the Opinion of the Court.

In this original proceeding, petitioner Robert Harlan seeks to vacate the district court's order disqualifying his longtime counsel of choice. The district court disqualified Harlan's counsel of choice on an oral motion by the People during post-conviction proceedings. Harlan contends that the district court abused its discretion in ordering disqualification. We issued a rule to show cause and now make the rule absolute.

After reviewing the relevant facts and procedure, we review the principles governing disqualification. As our discussion indicates, a determination regarding disqualification encompasses several considerations, including a defendant's right to continued representation by his counsel of choice, his right to conflict-free counsel, his right to waive the right to conflict-free counsel, and the public interest in preserving the integrity of the judicial process. Our discussion reveals that in Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), we articulated a balancing test that encompasses these considerations in determining whether disqualification is necessary and proper. Because our determination that disqualification was not warranted in this case turns on the nature of the alleged potential conflict of interest, we discuss the alleged conflict in detail. Finally, applying the Rodrigues balancing test to this case, we conclude that the district court abused its discretion when it ordered disqualification of Harlan's counsel of choice.

I. Facts & Procedure

After a jury trial, Harlan was found guilty of first-degree murder, two counts of attempted murder, second-degree kidnapping, and first-degree assault. The jury returned a sentence of death on the capital murder conviction. On April 20, 2001, we issued a mandate affirming the sentence and conviction and instructed the district court to vacate the sentence for one attempted murder count. See People v. Harlan, 8 P.3d 448 (Colo.2000).

At the time we issued our mandate, there was a motion pending in the district court. That motion, captioned Motion to Vacate the Death Sentence Due to Juror's Use of the Bible During Penalty Phase Deliberations ("the Bible Motion"), was filed by Harlan in 1995 upon counsel's discovery that jurors had allegedly brought Bibles into their penalty phase deliberations. The trial court did not consider the Bible Motion before Harlan's notice of appeal had to be filed and we did not address it on appeal. Upon our issuance of the mandate, the People took the position that the Bible Motion was no longer pending. The People's procedural position, along with the merits of the Bible Motion, were being briefed by counsel when the People successfully moved to disqualify Harlan's counsel for all purposes. It is the district court's order disqualifying Harlan's counsel that is the subject of this C.A.R. 21 proceeding. Because the disqualification order was appealed immediately, all matters, including the Bible Motion, were effectively stayed pending our resolution of this C.A.R. 21 proceeding.

Prior to the hearing at which the district court disqualified Harlan's counsel, and before Harlan filed a Crim. P. 35(c) motion, he filed a motion seeking the appointment of alternate defense counsel (ADC) to investigate and present any claims of ineffective assistance of counsel. This motion was filed notwithstanding the fact that no allegations had been made that Harlan's counsel of choice was ineffective. At a hearing on August 2, 2001, the district court agreed that conflict-free ADC should be appointed to represent Harlan to review any possible ineffective assistance of counsel claims that might be asserted at some time in the future. At that same hearing, the People asserted that the public defender should no longer be involved with the case. The district court rejected the People's assertion and scheduled another hearing for August 20, 2001 for the appointment of conflict-free ADC. Finally, the district court notified counsel that all future matters would be heard by another division and ordered that any motions to be heard at the August 20 hearing be filed by August 18.

After the August 13 deadline passed, the People filed two pleadings, one of which asserted that the public defender should be required to withdraw as counsel unless Harlan agreed to waive any claims of ineffective assistance of counsel. The People based this pleading on what it contended was the certainty that Harlan would assert ineffective assistance of counsel claims against his counsel of choice, which would create an impermissible conflict of interest. The People rely on this same argument in this C.AR. 21 proceeding. The People did not file a motion to disqualify Harlan's counsel.

At the August 20 hearing, the People orally requested that the district court disqualify Harlan's counsel for all purposes. The People made this request notwithstanding the fact that only two defense matters were set to be heard on August 20, neither of which was a motion to disqualify counsel. Over defense counsel's objection, the court heard argument on the disqualification issue and ordered that Harlan's counsel be disqualified immediately. At the time of counsel's disqualification, there were two pending motions, the Bible Motion and Harlan's Combined Crim. P. 35(a) and 35(b) Motion. In disqualifying Harlan's counsel, the district court stated:

I think having the Public Defender's office continue as Mr. Harlan's counsel in this case does create a tension, a significant one, in that he has the right to raise ineffective assistance of counsel issues, and likely those issues will be raised.... Although ineffective assistance of counsel claims haven't been raised yet, they likely will be raised. In fact, I expect them to. No one expects otherwise. And once those issues are raised, I think it puts Mr. Harlan and the Public Defender's office in a very difficult situation.

The district court did not advise Harlan of the nature of any potential conflict, nor did it advise Harlan of his right to waive any potential conflict of interest, although it stated that it assumed that Harlan was prepared to waive his right to conflict-free counsel. The district court then appointed interim counsel, who continues to act only as interim counsel.

After the district court's ruling, Harlan's counsel filed a motion to reconsider. That motion amended Harlan's request regarding the scope of representation he was seeking from his counsel of choice. Specifically, the motion to reconsider asked only that Harlan be permitted to retain his counsel of choice for the limited purposes of litigating the Bible Motion and the Crim. P. 35(a) Motion The district court denied the motion to reconsider. Harlan's counsel filed the present CAR. 21 motion, requesting a rule to show cause. We issued the rule to show cause and the matter has been fully briefed. We now make the rule absolute and hold that the district court improperly disqualified Harlan's counsel of choice.

IIL Disqualification of Counsel: Controlling Principles

A. Disqualification: General Concepts

Very generally, disqualification of a defendant's counsel of choice is utilized to remedy situations in which continued representation would in some way tarnish the judicial process. See generally Taylor v. Grogan, 900 P.2d 60 (Colo.1995). In determining whether disqualification is warranted "[t]he critical question is whether the litigation can be conducted in fairness to all parties. Disqualification should not be imposed unless the claimed misconduct in some way 'taints' the trial or legal system." Id. (quoting Fed. Deposit Ins. Co. v. Isham, 782 F.Supp. 524, 528 (D.Colo.1992)). We have held that an important consideration in determining whether disqualification is necessary is the "presence of a real and substantial conflict that place[s] the defense attorney in a situation inherently conducive to and productive of divided loyalties." People v. Castro, 657 P.2d 932, 945 (Colo.1983). Thus, we have found a "substantial" conflict warranting withdrawal where a public defender was appointed to represent two defendants with conflicting interests. Allen v. Dist. Ct., 184 Colo. 202, 204, 519 P.2d 351, 352 (1974). Similarly, the United States Supreme Court has recognized that the trial court could require disqualification of counsel who represented codefendants in a conspiracy case where one defendant was offered a plea agreement that would make him a witness against the other. Wheat v. United States, 486 U.S. 153, 160, 162, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

Disqualification is a severe remedy that should be avoided if possible. "Courts should impose the least severe sanctions nee-essary to remedy improper conduct by the parties," People v. Palomo, 81 P.3d 879, 885 (Colo.2001), and should "shape a remedy which will assure fairness to the parties and the integrity of the judicial process." People v. Garcia, 698 P.2d 801, 806 (Colo.1985). As a result, disqualification is only proper when it appears reasonably necessary to ensure "the integrity of the fact-finding process, the fairness or appearance of fairness at trial, the orderly or efficient administration of justice, or public trust or confidence in the criminal justice system." Id. at 806.

In Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), we articulated a balancing test for determining whether disqualification is proper. Rodrigues directs that a court must "evaluate the defendant's preference for particular counsel, ... and the public's interest in maintaining the integrity of the judicial process as well as the nature of the particular conflict of interest involved." Rodriguez, 719 P.2d at 706-07. However, where the cireumstances of the case do not rise to the level of a substantial conflict, waiver may be acceptable and disqualification inappropriate. In Rodrigues, the office of the public defender had previously represented one of the prosecution's witnesses. Nonetheless, the possible confidential information gained by the public defender's office did not outweigh the defendant's preference for continued representation by the public defender. Id. at 707-08. We have also held that a prosecuting attorney's intent to file a grievance against the public defender was not a conflict which precluded waiver of conflict-free representation by the defendant. People v. Martinez, 869 P.2d 519, 526 (Colo.1994).

Additionally, a trial court may not disqualify counsel on the basis of speculation or conjecture; disqualification may only occur after facts are alleged that demonstrate the potential violation of a rule of professional conduct. People ex rel. Woodard v. Dist. Ct., 704 P.2d 851, 853 (Colo.1985). The burden of establishing that disqualification is proper is on the moving party. That burden is only met when the motion to disqualify sets forth specific facts that "point to a clear danger that either prejudices counsel's client or his adversary." Id.

Trial courts have broad discretion in determining whether disqualification is necessary; we review a district court's order regarding disqualification under an abuse of discretion standard. People v. Dist. Ct., 951 P.2d 926, 931 (Colo.1998).

B. Disqualification: The Specific Concepts -_ of the Right to Continued Representation by Counsel of Choice, the Right to Conflict-Free Counsel, and Waiver of the Right to Conflict-Free Counsel

The general concepts underlying disqualification encompass several more specific concepts, each of which is implicated in this case and each of which is reflected in the Rodrigues balancing test. More specifically, a disqualification determination involves consideration of a defendant's right to continued representation by counsel of choice, a defendant's right to conflict-free counsel, and a defendant's right to waive the right to conflict-free counsel. In this case, Harlan asserts that he is entitled to continued representation by his counsel of choice for the purposes of litigating the Bible Motion and the Crim. P. 85(a) Motion. He also asserts that he is willing to waive any potential conflict arising from representation by his counsel of choice on these two motions, including a waiver of ineffective assistance of counsel claims that might arise from the litigation of these two motions. Finally, he argues that the public's interest in maintaining the integrity of the judicial process is not outweighed by his right to continued representation by his counsel of choice.

1. Right to Continued Representation by Counsel of Choice

The right to continued representation by counsel of choice must be distinguished from an asserted right to have particular counsel of choice appointed. The present case involves the former, namely a defendant who desires to have continuing representation by his counsel of choice, who has represented him over the course of a complex, seven-year death penalty case. Harlan does not contend that his right to continued representation by court-appointed counsel equates to a right to choose that court-appointed counsel.

While there is no Sixth Amendment right for an indigent defendant to choose his appointed counsel, that defendant is "entitled to continued and effective representation by court-appointed counsel in the absence of a demonstrable basis in fact and law to terminate that appointment." Williams v. Dist. Ct., 700 P.2d 549, 555 (Colo.1985). As a result, once counsel is appointed, the attorney-client relationship "is no less inviolable than if the counsel had been retained by the defendant." People v. Isham, 923 P.2d 190, 198 (Colo.Ct.App.1995). There is thus a presumption in favor of a defendant's choice of counsel. Tyson v. Dist. Ct., 891 P.2d 984, 990 (Colo.1995) (citing Wheat, 486 U.S. at 163-64, 108 S.Ct. 1692). The presumption extends to indigent defendants: A defendant's desire for continued representation by a court-appointed public defender is "entitled to great weight." Rodriguez, 719 P.2d at 707. However, the presumption may be overcome by a showing of an ethical conflict or a potential for conflict. Id.

Based on these principles, the People's contention that indigent defendants are not entitled to choose court-appointed counsel is irrelevant to the issue before us. While it is a correct statement of law that an indigent defendant has no right to choose his court-appointed counsel, see, e.g., People v. Shook, 186 Colo. 339, 527 P.2d 815 (1974), this principle is not implicated in the present case. In contrast, the issue presented in this case is whether Harlan may continue to be represented by his longtime counsel of choice. As noted above, an indigent defendant has a presumptive right to continued representation by court-appointed counsel absent a factual and legal basis to terminate that appointment. Williams, 700 P.2d at 555. Because the issue presented in this case is whether Harlan may continue to be represented by his current counsel, and not whether he may choose his counsel, this argument by the People, and the case law cited to support the argument, is inapposite.

We find that Harlan has a presumptive right to continued representation by his counsel of choice for litigation of the Bible Motion and the Crim. P. 35(a) Motion. However, this conclusion does not end our inquiry. Pursuant to Rodriguez, this presumption must be weighed alongside Harlan's right to conflict-free counsel, his right to waive that right to conflict-free counsel, and the interest of the public in maintaining the integrity of the judicial process.

2. Right to Conflict-Free Counsel and Waiver

In addition to the presumptive right to continued representation by counsel of choice, a defendant has a right to conflict-free counsel. In general, counsel becomes encumbered with a conflict when her effectiveness is impaired or when her "ability to champion the cause of the client becomes substantially impaired." Rodriguez, 719 P.2d at 704, 706.

Conflicts are categorized as either actual or potential. We have described an actual conflict of interest as one that is "real and substantial." See Castro, 657 P.2d at 944. A potential conflict has been de-seribed as "possible," "nascent," and as one that "in all probability will arise." See Wheat, 486 U.S. at 160, 162, 108 S.Ct. 1692; Allen, 184 Colo. at 206, 519 P.2d at 353. Our precedent makes clear that categorizing a conflict as "potential" implies a likelihood and a level of risk that the conflict will materialize. Allen, 184 Colo. at 206, 519 P.2d at 353. Because a "potential" conflict may thus encompass a range of possible seenarios, determinations regarding the potentiality of the conflict, the waivability of the conflict, and the requirement of an express, valid waiver are necessarily fact-specific and therefore must be made on a case-by-case basis.

The right to conflict-free counsel is encompassed within the right to effective assistance of counsel. Martinez, 869 P.2d at 524 (citing Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). That counsel must be conflict-free ensures that a defendant will receive the zealous advocacy to which he is entitled. Murphy v. People, 863 P.2d 301, 304 (Colo.1993).

Although a defendant is entitled to conflict-free counsel, he may waive that right in many cireumstances. Castro, 657 P.2d at 944. In order to waive the right to conflict-free counsel, a defendant must be fully advised of the existing or potential conflict. Martinez, 869 P.2d at 525. A waiver is valid upon a showing that the defendant was "aware of the conflict and its likely effect on his counsel's ability to offer effective representation and that the defendant thereafter voluntarily, knowingly and intelligently relinquished his right to conflict-free representation." Castro, 657 P.2d at 946. Waiver may be permitted even where the defendant "will receive representation which is less effective than the representation which could be provided by conflict-free counsel." Rodriguez, 719 P.2d at 706.

Although a defendant may waive the right to conflict-free counsel in many circumstances, the right to waive is limited. Limitations on a defendant's right to waive conflict-free counsel are imposed in cireum-stances where "considerations other than a defendant's desires are given controlling significance. These considerations relate to the paramount necessity of preserving public confidence in the integrity of the administration of justice." Martinez, 869 P.2d at 527. In determining what cireumstances preclude a defendant's waiver of the right to conflict-free counsel, we have employed the Rodri-gues balancing test to determine whether a defendant's desire to continue to be represented by his counsel of choice significantly undermines the public confidence in the impartiality and fairness of the judicial process because of the nature of the conflict involved. Rodriguez, 719 P.2d at 706.

In sum, the principles underlying the right to continued representation by counsel of choice, the right to conflict-free counsel, and a defendant's prerogative to waive the right to conflict-free counsel are interrelated. All three rights are considered and balanced, alongside the public's interest in maintaining the integrity of the judicial process, in determining whether a particular defendant will be permitted to continue to be represented by counsel of choice, or whether counsel should be disqualified, given the facts of a particular case. See Rodriguez, 719 P.2d at 706-07.

III. The Disqualification Determination in this Case

The People contend that an actual conflict of interest between Harlan and his counsel of choice compels the disqualification in this case. The People argue that the possibility, which the People describe as a "historical certainty," that Harlan will assert ineffective assistance of counsel claims against his counsel of choice creates an impermissible conflict of interest that mandates disqualification of Harlan's counsel of choice for all purposes. The People point to the defense motion seeking the appointment of conflict-free ADC to investigate and present any claims of ineffective assistance of counsel as evidence that an actual conflict exists, which mandates disqualification of Harlan's counsel of choice.

Alternatively, the People argue that there is at least a potential conflict of interest in this case because death penalty defendants frequently assert ineffective assistance of counsel claims. The People thus conclude that the public defenders may not continue to represent Harlan and simultaneously call into question their own effectiveness at trial and on appeal. The People contend that the mere investigation of a possible ineffective assistance of counsel claim at this stage in the proceedings would undermine public confidence in the eriminal justice system, as well as confuse Harlan by calling into question whether he should trust his counsel of choice.

Although we disagree with the People's argument that there is an actual conflict in this case, we do agree that the disqualification determination turns on the nature of the alleged conflict between Harlan and his counsel of choice. We thus turn to a more detailed discussion of the nature of the alleged conflict in this case before reaching a determination regarding disqualification.

A. The Nature of the Alleged Conflict of Interest

Harlan has not alleged that his counsel of choice provided ineffective assistance. Rather, he only asks for the appointment of counsel to investigate whether there is a basis for asserting such claims. This case is therefore distinguishable from those cases in which specific allegations of ineffective assistance of counsel, usually asserted in post-conviction pleadings, have created an actual conflict of interest. See, e.g., Murphy, 863 P.2d at 304 (district court created actual, impermissible conflict of interest when it appointed trial counsel to represent defendant in post-conviction proceedings alleging ineffective assistance of counsel); McCall v. Dist. Ct., 783 P.2d 1223, 1228 (Colo.1989)(actual conflict of interest for court to appoint public defender from the appellate division to represent defendant in post-conviction proceedings alleging ineffective assistance of counsel against deputy public defender who served as trial counsel); Riley v. Dist. Ct., 181 Colo. 90, 94, 507 P.2d 464, 466 (1973)(defense attorneys must be allowed to withdraw when defendant alleges ineffective assistance of counsel because to deny the motion to withdraw would create an actual conflict of interest).

Additionally, Harlan's counsel filed the motion for appointment of ADC to investigate potential ineffective assistance of counsel claims not because such claims will certainly be filed, but instead because of federally-imposed time restraints that may be implicated if Harlan later decides to file a federal habeas corpus petition. Accordingly, the alleged conflict of interest is only potential.

The distinction between actual and potential conflicts is significant because it may, in some cireumstances, impact the necessity of waiver. While an actual conflict may or may not be waivable under the facts of a particular case, if a court finds that an actual conflict is waivable, it must obtain an express, valid waiver of the conflict from the defendant. Similarly, a potential conflict may or may not be waivable. However, in contrast to an actual conflict, there are some cireumstances in which a potential conflict will not require a waiver. The category of "potential conflict" encompasses a variety of possible scenarios, ranging from a remote possibility that the conflict may arise to a high probability that the conflict will arise. In those cases in which the potential conflict is remote, waiver may not be required at all. We need not determine whether the potential conflict here requires an express waiver because Harlan has not advanced that argument. Instead, Harlan has offered to waive the potential conflict. Therefore, we proceed to consider whether the potential conflict in the case is waivable. We determine that it is.

We base our determination that the alleged potential conflict is waivable on several facts. First, we find it important that no claims of ineffective assistance of counsel have been filed. Second, it is significant that Harlan's counsel of choice explained that she filed the motion for appointment of ADC, at least in part, to preserve Harlan's state and federal post-conviction rights. Finally, the limited seope of the representation that Harlan seeks from his counsel of choice, which is representation on two pending motions, supports our determination that any potential conflict is waivable.

Having determined that Harlan has a presumptive right to continued representation by his counsel of choice and that the potential conflict in this case is waivable given the limited scope of the representation that Harlan seeks from his counsel of choice we now turn to an application of the Rodrigues balancing test and conclude that disqualification in this case was improper.

B. Application of the Rodrigues Balancing Test

The application of the Rodrigues balancing test reveals that the district court's disqualification in this case was improper and an abuse of discretion. As noted, the first Rodrigues factor, the presumption in favor of Harlan's counsel of choice is strong; he has been represented by his counsel of choice for the seven years of this complex death penalty litigation. Because this presumption has not been rebutted, this factor weighs heavily against disqualification.

The second Rodrigues factor, the public's interest in maintaining the integrity of the judicial system, is not compromised in this case for several reasons. First, Harlan's counsel of choice proceeded in a manner consistent with her ethical duties to the court, to her client, and to the judicial system. Once counsel is aware of a potential conflict of interest, we have stated that she must

inform the client of the nature of the conflict and, in plain terms, describe the specific ways in which the conflict may affect the attorney's ability to effectively represent the defendant at various stages of the pending litigation. The defense attorney should place on record the potential conflict of interest and further advise the court that as complete a disclosure as possible has been made to the defendant.

Castro, 657 P.2d at 946, n. 10. In this case, Harlan's attorney filed a motion for appointment of conflict-free ADC to investigate and possibly present claims of ineffective assistance of counsel. The filing of this motion did not, as contended by the People, in and of itself create a conflict; several factors indicate that this motion mitigated any potential conflict in a way that precludes disqualification. Counsel made representations to the district court at the August 20 hearing that she had informed Harlan of the conflict and that he was willing to waive his right to conflict-free counsel. In addition, she suggested that the court appoint independent counsel to caution Harlan about the conflict and advise the court as to the validity of his waiver. Finally, in her motion to reconsider, Harlan's counsel of choice further limited her request to continue to represent Harlan to the Bible Motion and the Crim. P. 85(a) Motion, both of which involved the sentencing phase of the trial and neither of which raised ineffective assistance of counsel claims. These factors demonstrate Harlan's counsel of choice's conscientious adherence to the rules of professional conduct.

Additionally, Harlan's counsel contends that the motion for appointment of ADC was filed to preserve her client's state and federal post-conviction rights. As such, the motion for appointment of ADC in this case, and the concomitant potential conflict of interest it embodied, is indistinguishable from the same potential conflict that is presented in the many other cases in which such a motion is filed to preserve future post-conviction rights, In proceeding to preserve such claims for her client, as is done in many other cases, Harlan's counsel of choice cannot be said to have acted in a way that undermines the public's interest in maintaining the integrity of the judicial process. In contrast, Harlan's counsel of choice, by proceeding in a manner that seeks to preserve important rights of her client and that is consistent with standard practices, has acted in a manner consistent with fostering continued public confidence in the integrity of the judicial process.

Taken together, we view these factors as tending to further public confidence in the judicial process, not to diminish it, as is argued by the People. In short, the People did not meet their burden of demonstrating that a clear danger of prejudice exists to either Harlan or the state. Woodard, 704 P.2d at 853. This Rodriguez factor thus weighs heavily against disqualification.

The final Rodrigues factor, the nature of the conflict involved, also weighs against disqualification. Importantly, the conflict in this case is not actual but is only potential. To date, there has been no allegation of ineffective assistance of Harlan's counsel of choice. Additionally, the alleged conflict of interest is mitigated by counsel's motion for the appointment of ADC to investigate and possibly present any future ineffective assistance of counsel claims. Moreover, counsel further limited her request to continue to represent Harlan in her motion to reconsider when she requested that she be permitted to continue as Harlan's counsel only as to the Bible Motion and the Crim. P. 85(a) Motion. This request to limit her representation further mitigates and diminishes any conflict of interest that may arise in the future. Finally, as stated above, the alleged potential conflict in this case is waivable. Accordingly, when balanced against each other, the three Rodriguez factors compel our determination that the district court abused its discretion in disqualifying Harlan's counsel of choice.

C. Directions on Remand

In this case, the district court proceeded on the basis that Harlan would waive his right to conflict-free counsel. As a result, that court did not advise Harlan of either his right to conflict-free counsel or his right to waive that right to conflict-free counsel and, thus, determine whether Harlan in fact waives his right to conflict-free counsel.

Accordingly, on remand, the district court should engage in such advisement and make a determination regarding the effectiveness of Harlan's waiver. The district court may, in its discretion, appoint independent counsel to assist it in making this determination. If Harlan in fact waives his right to conflict-free counsel for the litigation of these two motions, the court shall accept the waiver,. We bave accepted a defendant's waiver of the right to conflict-free counsel in situations that presented more immediate potential or actual conflicts than the alleged conflict presented here. See, e.g., Tyson, 891 P.2d at 991 (permitting waiver of right to conflict-free counsel where defense attorney represented husband and wife in criminal proceeding in which evidence was stronger against one person than against the other and where a plea agreement had been made to one of the defendants that entailed testifying against the co-defendant); Martinez, 869 P.2d at 528 (permitting waiver where conflict was based on defense counsel's prior representation of prosecution witness and prosecutor's decision to file grievance against defense counsel due to witness' allegations that | they failed to appear because defense counsel told them it would be better for the defendant if they did not). Accordingly, an informed and knowing waiver by Harlan must be recognized.

However, if Harlan does not in fact waive his right to conflict-free counsel for litigation of the Bible Motion and the Crim. P. 35(a) Motion after proper advisement, the court may then properly order disqualification of his counsel of choice from representing him on these two motions.

IV. Conclusion

We make the rule absolute and direct the district court to conduct further proceedings consistent with this opinion.

Justice KOURLIS dissents, and Justice RICE joins in the dissent.

Justice BENDER and Justice COATS do not participate.

Justice KOURLIS

dissenting:

In my view, the trial court in this case acted well within its discretion in concluding that a defendant's request for the appointment of alternative defense counsel to investigate ineffective assistance of previous counsel created an actual or potential conflict of interest with that previous counsel, which conflict could not be waived. Accordingly, I would uphold the trial court order disqualifying the Office of the Public Defender from any further representation of Robert Harlan and therefore respectfully dissent from the majority opinion.

I.

On July 27, 2001, Harlan filed a Motion for the Appointment of Alternate Defense Counsel to Investigate and Present Claims of Ineffective Assistance of Counsel. The counsel to whom that motion referred was the public defender. The public defender had represented Harlan throughout all trial and appellate proceedings in the case to that point, and counsel stated in the motion that she would have "a conflict of interest vis-a-vis any claim of ineffective assistance of trial or direct appeal counsel." On August 2, 2001, the district court granted the motion and appointed alternate defense counsel to investigate any ineffectiveness of the public defender in the representation of Harlan. On August 20, 2001, on the Prosecution's motion, the trial court disqualified the public defender as Harlan's counsel.

The trial court stated, in pertinent part:

"Mr. Harlan is not prepared today to waive, hasn't been, and understandably so, any claims he might have to ineffective assistance of counsel. The Public Defender represented him at trial,. I think that having the Public Defender's office continue as Mr. Harlan's counsel in this case does create a tension, a significant one, in that he has the right to raise ineffective assistance of counsel issues, and likely those issues will be raised ... On the one hand, as [the prosecutor] points out in his brief, Mr. Harlan will expect to have zealous representation by the Public Defender's office at the same time that he, through other counsel, is raising claims that the Public Defender was not effective at trial in representing Mr. Harlan. I think that although it may not be an actual conflict at this juncture, it has the tendency to lead to being or potential for serious conflict. And when I consider that, and notwithstanding Mr. Harlan's request to have the Public Defender's Office continue to represent him, I believe that the existence of a serious potential for conflict and preventing that far outweighs what I think I perceive to be Mr. Harlan's desire to have a particular counsel representing him in post-conviction matters."

IL

The law applicable to this inquiry is quite clear. First, we vest great discretion with the trial courts to make these determinations, and review their orders only for abuse of discretion. See People ex rel. Peters v. Dist. Ct., 951 P.2d 926, 931 (Colo.1998).

Second, the trial courts are to make the decision by application of a balancing test. The facts of the particular case comprise the fulcrum of the balance. On the one side, the trial court is to place the defendant's preference for a particular counsel; and on the other, the public's interest in maintaining the integrity of the judicial process. See Rodriguez v. Dist. Ct., 719 P.2d 699, 706-07 (Colo.1986). Unlike the calculus applicable to the original appointment of counsel for an indigent defendant, when the defendant's choice carries little shrift, an indigent defendant does have the right to continue to be represented by his existing court-appointed counsel, absent some "demonstrable basis in fact or law to terminate that appointment." Williams v. Dist. Ct., 700 P.2d 549, 555 (Colo.1985).

This court has found conflicts of interest warranting disqualification of existing counsel in post-conviections proceedings when the client asserted that his counsel improperly advised him concerning a guilty plea (See Murphy v. People, 863 P.2d 301, 304-05 (Colo.1993); Riley v. Dist. Ct., 181 Colo. 90, 507 P.2d 464, 466 (1973)) and when the defendant asserted ineffective assistance of one attorney within the same office at trial (See McCall v. Dist. Ct., 783 P.2d 1223, 1227-28 (Colo.1989)).

The trial court in this case relied upon Rodriguez and People v. Isham, 923 P.2d 190 (Colo. cert. denied. In Isham, the trial court disqualified defense counsel when he filed an affidavit in support of a motion to suppress that would have required him to be a witness in the suppression hearing. The appellate court disagreed with the disqualification but elected not to overturn the trial court's order. Isham, 923 P.2d at 198. The appellate court held that neither the relatively minor conflict nor the public confidence in the integrity of the system required the disqualification of the public defender, but that a defendant's preference would necessarily give way when faced with "the paramount necessity of preserving the public confidence in the integrity of the administration of justice" Id. at 194 (quoting People v. Martinez, 869 P.2d 519, 527 (Colo.1994)).

IIL

The trial court here confronted a circumstance in which Harlan had himself requested and received the appointment of new counsel to investigate the effectiveness of his old counsel, the Office of the Public Defender. At the very least, by that motion, Harlan was stating to the court that he was looking for errors that his previous counsel might have committed that would undermine the outcome of the proceeding.

Whether Harlan filed the Motion because of time constraints under the federal Antiter-rorism and Effective Death Penalty Act, 28 U.S.C. § 2244, or to preserve options for himself in attacking his conviction matters not. He did file the Motion, and was unwilling to waive his right to do so. By asserting the ineffectiveness or possible ineffectiveness of his counsel, he created what the trial court called a "tension" in his relationship with that counsel. On the one hand, he is arguing that his counsel is ineffective, and on the other hand, asking that same counsel represent him on a continuing basis. The reasons that led to the Motion do not dilute this tension. A policy that would require judges to examine each motion for individual motivations would undermine, among other things, important facets of the attorney-client relationship such as confidentiality and trust and as such, we must take these Motions on their face.

We need not resolve here today whether such a request creates an actual conflict or a potential conflict. We need merely determine whether the trial court abused its discretion in concluding that either an actual or potential conflict existed. Our case law supports a conclusion that where the trial court determines that a conflict exists or may arise in the future, a motion for disqualification or withdrawal should be granted. See Allen v. Dist. Ct., 184 Colo. 202, 519 P.2d 851, 353 (1974); see also Wheat v. United States, 486 U.S. 153, 161-62, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). More blatantly, we have held in the past that the filing of a motion that asserts ineffective assistance of counsel creates a cireumstance in which "neither the law ror common sense" would suggest that the lawyer would continue to represent a client who asserts such incompetence. Riley v. Dist. Ct., 181 Colo. 90, 507 P.2d 464, 466 (1973).

Here, the trial court concluded that such a paradox disserves the integrity of the system of justice, and I would uphold that conclusion. Indeed, in my mind, to hold otherwise would support an inference that the process is replete with gamesmanship: an inference completely at odds with public confidence in the system. For that reason, as well, I view the conflict as not susceptible to waiver. Harlan's choice was to file or not file the Motion for Appointment of Alternative Counsel. He chose.

IV.

Because I believe that the trial court acted well within its discretion in granting the Prosecution's Motion to Disqualify the Office of the Public Defender following appointment of alternative defense counsel to investigate ineffective representation by that very office, I respectfully dissent from the majority opinion and would uphold the trial court order.

I am authorized to state that Justice RICE joins me in the dissent.

      . The two pleadings filed by the People after the August 13 deadline were: (1) Points and Authorities Concerning the Appointment of Post-Conviction Counsel for the Defendant, and (2) Brief in Support of the Prosecution's Position that a Defendant Whose Death Sentence Has Been Affirmed on Appeal Cannot File Post-Conviction Motions Pursuant to Rule 35(a) or 35(b).

      . The two matters set for the August 20 hearing were: (1) Harlan's motion to vacate the aitempt-ed murder conviction pursuant to this court's April 20 mandate, and (2) the appointment of conflict-free counsel to investigate and, if appropriate, present any ineffective assistance of counsel claims.

      . Although Harlan filed a Combined Crim. P. 35(a) and 35(b) Motion, Harlan's counsel requests only to represent Harlan on the Crim. P. 35(a) Motion.

      . Harlan's counsel asserts that she filed the motion for ADC not because an actual conflict exists, but instead because of the one-year deadline set forth in the federal Antiterrorism and Effective Death Penalty Act (AEDPA) for filing all post-conviction claims. See generally 28 U.S.C. § 2244 (2000). Based on the AEDPA, Harlan's counsel states that she filed the motion for appointment of ADC "out of an abundance of caution to ensure that conflict-free counsel would have adequate time to investigate any possible ineffective assistance of counsel claim prior to the expiration of the one-year period."

      . At the August 20 hearing, the district court expressed concern that Harlan did not express a willingness to waive any ineffective assistance of counsel claims. The district court misconstrued the nature and scope of the waiver that would be required of Harlan. Under controlling law, Harlan is only required to waive ineffective assistance of counsel claims based on the waived conflict of interest. See Tyson v. Dist. Ct., 891 P.2d 984, 990 (Colo.1995). The issue of Harlan's right to assert ineffective assistance of counsel claims arising from post-conviction, conflict-free representation is not before us and we thus do not address it.

      . The court may do so without determining whether an express, valid waiver is required in this case because Harlan has never argued that the facts of this case are such that no waiver is required. See discussion, supra, at 880.