Chapter 42 - § 42.19 • PRIVILEGED COMMUNICATIONS

• Jurisdiction: Colorado

§ 42.19 • PRIVILEGED COMMUNICATIONS

There are particular relationships in which it is the policy of the law that confidence should be preserved inviolate and for that reason certain classes of persons may not be examined as witnesses when the other classes of persons are parties. The statutory classes are (1) husband and wife, unless consent is given, and this applies after divorce with regard to communications during marriage, but not in cases of crimes against each other or to civil actions between them; (2) attorney and client, without consent, if the communication was made in the course of professional employment, and communications to the attorney's clerk or stenographer may not be revealed without the attorney's consent; (3) clergyman or priest and communicant, without consent, as to statements made during a confession that is required by the rules of the church to which the communicant belongs; (4) physician or surgeon and patient, without consent, if the physician is authorized to practice in this state and the communication is in the course of professional employment, and if the communication was necessary for proper performance of the physician or surgeon's services; but in an action by the patient or on behalf of his or her heirs or estate against the physician, arising out of the employment, the physician and those who were in consultation with the patient may testify; (5) public officers, with regard to communications in their official capacities if the court finds such testimony not to be in the public interest; (6) certified public accountant and client, without consent, as to any communication from the client or books regardless of intent to certify his or her work¹²⁵ (the advice given and reports and working papers carry a similar privilege; the accountant's clerk, stenographer, and assistant may not testify as to such matters without the client's consent); and (7) certified psychologist and client, without consent, as to communications during professional employment, including group psychological supervised therapy.¹²⁶

The statute has been applied in many situations, but only those applications that seem likely to affect probate matters are discussed below.

In the 1976 edition of this text, it was said, "By the great weight of authority, with which Colorado is in accord, privilege is personal and dies with the person who may assert it."¹²⁷ It is believed that this statement is overbroad and not quite accurate, although the result may be the same. More accurately, the privilege may survive, but it may later be waived by the representative (in cases involving third parties) or it may be waived by a person or persons claiming through the decedent. This issue was dealt with by the U.S. Supreme Court in Swindler & Berlin v. United States.¹²⁸ This case deals with the question, at least in federal courts under the general common law, of the attorney-client privilege surviving death. In general, the attorney-client privilege was held to survive death, although the court recognized the traditional "testamentary exception"; that is, either that the personal representative may waive the privilege, or the privilege is not available in cases where heirs and devisees claim through the decedent (as opposed to parties claiming against the estate, for whom the privilege is not waived). The rationale is the overriding importance of carrying out testamentary/donative intent, which allows the privilege impliedly to be waived in order to carry out that intent.

The basic holding of the U.S. Supreme Court decision in Swindler v. Berlin was followed in Wesp v. Everson.¹²⁹ This is a thorough opinion that should be read in detail in connection with issues regarding attorney-client privilege in probate litigation.¹³⁰

If a wife is an...