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When you’re in the middle of negotiating a major business or real estate deal, trust is everything. You might be wary about sharing sensitive details with anyone—even your own attorney—out of fear that someone could take advantage of your hard work. But here’s the reality: when you work with a licensed attorney in Colorado, attorney-client confidentiality and attorney-client privilege provide powerful protections that allow you to be open and strategic without risking your competitive edge.
Attorney-Client Confidentiality vs. Attorney-Client Privilege: What’s the Difference?
Although they sound similar, confidentiality and privilege serve different (but complementary) purposes:
- Attorney-Client Confidentiality: This is a broad ethical duty that prevents your lawyer from disclosing any information about your case without your permission, even if it’s not directly related to legal advice. This includes keeping confidential the identity of a client (unless that client gives express consent to disclose that we represent them). Our ethical obligations of maintaining attorney-client confidentiality applies indefinitely—even after the attorney-client relationship ends. This is why you may have heard Rachael say that “it’s our job to keep secrets.”
If an attorney breaches this duty, we can be subject to disciplinary action against our law licenses by the Colorado Supreme Court, including possible fines, suspension or even disbarment.
You may not know this, but when Rachael was in law school, she interned at the Florida Supreme Court and saw behind the scenes how the courts deal with attorneys who violate their ethical duties – it’s not pretty. Considering the intense schooling, significant school loans and other investments and sacrifices made to become a licensed attorney in Colorado, Florida, and New Jersey, you better believe we take confidentiality VERY seriously.
- Attorney-Client Privilege: This is a legal protection that prevents attorneys from being forced to disclose confidential communications between them and their clients in legal proceedings. Privilege only applies to communications made for the purpose of seeking or providing legal advice, and it can be waived if the client shares the information with third parties.
Why This Matters for Business and Real Estate Deals
When negotiating high-stakes transactions, you might have concerns like:
- "What if my attorney takes my deal and runs with it?"
- "What if they leak my business plans to another client?"
- "Can I really afford to share all the details?"
The good news? Colorado’s ethical and legal rules prevent licensed attorneys from doing anything that would betray their duty to you as a client. Here’s why confidentiality and privilege are crucial for your deal-making success:
1. You Get a Trusted Legal Sounding Board
Without full disclosure, your lawyer can’t properly advise you. Whether it’s structuring a deal, assessing risk, or negotiating terms, you need a professional who understands the full picture. Privilege ensures you can openly discuss strategies without fear that your words could later be used against you. If you are putting a deal together and enlist the assistance of a lawyer to draw up the contracts, if that lawyer doesn’t immediately ask you who the other party is to confirm that representing you on the deal wouldn’t create a conflict of interest, that’s an ethical red flag.
2. Your Information Stays Protected—Even in a Dispute
If a deal goes sideways and litigation looms, attorney-client privilege means your private legal discussions generally can’t be subpoenaed or used in court. This protects your negotiation strategies, legal opinions, and any sensitive financial details you shared with your attorney.
3. Your Lawyer is Bound by Ethics (and Law)
Unlike brokers, consultants, or other business advisors, attorneys are bound by strict professional conduct rules. Violating confidentiality or acting against a client’s interest could lead to disciplinary action, disbarment, and even lawsuits. The risk is simply not worth it for any reputable attorney.
4. You Maintain the Upper Hand in Negotiations
A well-advised entrepreneur is a powerful entrepreneur. By leveraging confidential legal advice, you can:
- Develop negotiation strategies tailored to your position
- Identify hidden risks in contracts
- Structure deals that protect your long-term interests
When Attorney-Client Privilege Might NOT Apply
While these protections are strong, there are a few scenarios where they may not apply, including:
- If you voluntarily share privileged information with third parties (like business partners or brokers)
- If you seek legal advice to commit fraud or a crime (this is known as the "crime-fraud exception")
- If you bring in an attorney but don’t actually seek legal counsel (e.g., treating them as a business consultant instead)
Final Takeaway: Use Your Lawyer to Your Advantage
If you’re negotiating a business or real estate deal in Colorado, your attorney is not just another advisor—they’re a legally bound confidante who can help you secure the best possible terms without jeopardizing your interests. Instead of holding back, take full advantage of the protections in place and use your legal counsel as the strategic ally we’re meant to be. Share your wishes, concerns, expectations, timelines, so that we can have the full context of the deal and advise accordingly.
Need an attorney who understands the complexities of high-stakes business and real estate transactions? Let’s talk.
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