People v. Cortes-Gonzalez.

2022 CO 14. No. 21SA308. Attorney-Client Privilege—Attorney-­Client Confidentialities—Implied Waiver—Fairness Principle—Automatic Statutory Waiver—CRS § 18-1-417—Ineffective Assistance of Counsel—Postconviction Remedies—Crim. P. 35(c)—C.A.R. 21.

March 21, 2022

The Supreme Court reached multiple holdings in this case. First, the Court held that whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives the attorney-client privilege, as well as any other confidentiality, between counsel and the defendant, but only with respect to the information that is related to the ineffective assistance claim. See CRS § 18-1-417(1). And, with the prohibition on the disclosure of attorney-client confidentialities removed, the allegedly ineffective counsel has no reason to refuse to discuss with, or disclose to, the prosecution such confidentialities, so long as they are related to the ineffective assistance claim advanced. Thus, when the prosecution properly requests confidential information related to an ineffective assistance claim, the allegedly ineffective counsel must produce the requested information without undue delay.

Second, the Court held that the procedures set forth in Crim. P. 35(c)(3)(V) in no way modify CRS § 18-1-417. No provision in Crim. P. 35(c)(3)(V) mentions § 18-1-417 or deals with attorney-client confidentialities. Contrary to one of the contentions advanced in this case, the scope of the statutory waiver is contingent on the nature of the ineffective assistance claim lodged, not on any action the court takes pursuant to Crim. P. 35(c)(3)(V).

The Court recognized, however, that prosecutors will generally wait to seek confidential information related to an ineffective assistance claim until, pursuant to Crim. P. 35(c)(3)(V), the court has requested a response from them or set a hearing. This is the preferred practice. Given the importance of the protection afforded confidential attorney-client information, prosecutors would do well to avoid requesting access to such information until they have a need for it.

Third, the Court held that it is improper for prosecutors to request an order or use a Crim. P. 17 subpoena duces tecum (SDT) to attempt to access the confidential information covered by CRS § 18-1-417(1). In light of § 18-1-417(1), there’s no need to seek an order or use an SDT. And, because the statutory waiver is cabined by the nature of the ineffective assistance claim, it is improper for prosecutors to ever request the production of confidential information that’s unrelated to the claim. Hence, whether through an order or an SDT, attempting to compel production of the allegedly ineffective counsel’s entire case file without regard to the nature of the claim runs afoul of Colorado law.

Fourth, the Court held that the prosecution doesn’t have an inherent right to an in camera review of the allegedly ineffective counsel’s case file—even if the purpose of the review is to ensure that all information subject to the waiver will be produced. In camera disclosure to the court is still a disclosure, and even if it goes no further and the court declines to share any documents with the parties, the review itself could have a chilling effect on attorneys and their clients, especially if prosecutors are able to frequently and easily obtain in camera review. Prosecutors must trust that the allegedly ineffective counsel will proceed in accordance with all ethical duties.

Finally, the Court held that after the allegedly ineffective counsel has produced the confidential information covered by the automatic waiver in CRS § 18-1-417(1), the court may grant a request for an in camera review of the allegedly ineffective counsel’s entire case file if the prosecution first clears the hurdle erected in People v. Madera, 112 P.3d 688, 691 (Colo. 2005). Under Madera, the prosecution must have a reasonable good faith belief that in camera inspection of the allegedly ineffective counsel’s case file will reveal that the additional information sought falls within the statutory waiver. If the court finds that the prosecution has satisfied the Madera standard, it should order the allegedly ineffective counsel to produce the entire case file for an in camera review to determine whether there is additional information related to the ineffective assistance claim. After any in camera review, the court must disclose to the prosecution claim-related information not previously produced.

Accordingly, the Court held that the district court erred in ordering the public defender to turn over the unredacted copies of her case files for an in camera review. The rule was made absolute and the case was remanded for further proceedings consistent with this opinion.