50 Colo.Law. 15
’Til Death Do Us Part: The Attorney-Client Privilege and the Duty of Confidentiality after a Client’s Death
Vol. 50, No. 3 [Page 15]
Colorado Lawyer
March, 2021
WHOOPS
LEGAL MALPRACTICE PREVENTION
BY
JOHN M. PALMERI AND GREG S. HEARING
In
Freirich v. Rabin,[1] the Colorado Supreme Court recently
addressed the application of the attorney-client privilege
and the duty of confidentiality following the death of a
lawyer's client. Expanding on the holding of Wesp v.
Everson,[2] the Supreme Court held that the
attorney-client privilege and the duty of confidentiality
both survive a client's death, and a lawyer may only
disclose client files and communications "as necessary
to settle the decedent's estate."[3]
Background
Louis
Rabin thed testate and appointed his widow, Claudine Rabin,
as his personal representative.[4] In the process of administering
the estate, the personal representative was presented with a
claim from Louis's ex-wife for $200,000 based on
promissory notes he had executed that were payable to the
ex-wife upon his death.[5] The personal representative asked
Louis's longtime attorney to provide all of Louis's
legal files.[6] Louis's attorney initially
refused, citing both the attorney-client privilege and the
duty of confidentiality.[7] A subpoena followed, which
Louis's attorney successfully moved to quash.[8] The lawyer
provided his notes and the file with respect to the
promissory notes to the ex-wife after determining that those
materials were not privileged. He refused to produce any
other files.
An
appeal followed. The Colorado Court of Appeals reversed the
trial court order quashing the subpoena. The Court held that
client files are property of the estate and that the personal
representative holds the right to access the client files
unless the will provided otherwise.[9] The Court of Appeals also
held that the personal representative held the
attorney-client privilege.[10] As a result, it concluded that
Louis's communications could be disclosed to the personal
representative without violating the attorney-client
privilege.[11] Louis's attorney filed a
petition for certiorari.[12]
Supreme
Court Decision
The
Supreme Court first addressed the Court of Appeals'
holding that client files are property within the meaning of
CRS§ 15-12-709 of which the personal representative was
entitled to take control.[13] The Court concluded that "a
personal...
