In the midst of a global pandemic and a presidential election, the Colorado Supreme Court still found a way to make news within the legal community by addressing the application of a lawyer’s duty of confidentiality and the attorney-client privilege after the death of a client.

For some time now, practitioners have known that the attorney-client privilege and duty of confidentiality both survive a client’s death.  Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001) (“[t]he attorney client privilege generally survives the death of the client.”); Colo. Bar Ass’n Ethics Comm., Formal Op. 132 , at 1 (2017) (“A lawyer’s duty of confidentiality continues after the death of a client.”)  However, until Freirich v. Rabin, 2020 CO 77, the Colorado Supreme Court had never addressed who holds such privileges and how they are waived.  In Rabin, the Court held a deceased client’s legal files belong to the lawyer except for “documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills.”  The Court further held that the decedent, and not the personal representative, holds the attorney-client privilege after death.  However, by appointing a personal representative, the decedent impliedly waives the attorney-client privilege and duty of confidentiality as “necessary for the administration of the estate.”

Before digging further into the opinion, let’s briefly revisit the ethical duty of confidentiality and the evidentiary attorney-client privilege:

The ethical duty of confidentiality is set forth in Colo. RPC 1.6. The scope of the duty of confidentiality is extremely broad, encompassing “information relating to the representation of a client….” Colo. RPC 1.6(a). Included within this broad scope of confidentiality under Colo. RPC 1.6 is information that is subject to the attorney-client privilege. See Colo. RPC 1.6, cmt. [3]. The attorney-client privilege is a matter of the substantive law of evidence, not legal ethics.

Colo. Bar Ass’n Ethics Comm., Formal Op. 123, at 6 (2011).

The attorney-client privilege…appl[ies] in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The [duty of confidentiality] applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The [duty of confidentiality], for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.

Colo. RPC 1.6, cmt. [3].

The attorney-client privilege applies unless it is expressly or impliedly waived by the holder or an exception, such as the testamentary exception, applies.  Id. at 30 (citing Wesp, 33 P.3d at 198, 200.)  The duty of confidentiality similarly applies unless one of the enumerated exceptions stated in Colo. RPC 1.6(b) permits disclosure.  In addition, an attorney is also impliedly authorized to make disclosures about a client despite the duty of confidentiality “when appropriate in carrying out the representation.” Colo. RPC 1.6 cmt. 5.

In Rabin, these principles of client-lawyer confidentiality – the duty of confidentiality and the attorney-client privilege – were “placed on a collision course” with a personal representative’s duty to settle a decedent’s estate after the personal representative subpoenaed the legal files of the decedent’s longtime business attorney in the hopes of gaining information required to determine the validity of a claim against the estate.  Rabin, ¶¶ 1-2.  The personal representative claimed the files were the decedent’s property, any attorney-client privilege belonged to the estate, and the decedent had waived any attorney-client privilege or right to confidentiality by nominating her as personal representative.[1] Id. at ¶ 9.  Nonetheless, the decedent’s attorney ultimately succeeded in quashing the subpoena, citing the attorney-client privilege and duty of confidentiality.  Id. at ¶¶ 7-9.

On appeal, the court of appeals agreed with the personal representative, reversed the district court, and held that a personal representative “succeeds to the rights and obligations of the Estate’s decedent, effectively ‘stepping into the shoes’ of the decedent.” In re Estate of Rabin, 2018 COA 183, ¶ 24 (citing Colo. Nat’l Bank of Denver v. Friedman, 846 P.2d 159, 163 (Colo. 1993)). “In other words, the right to claim the attorney-client privilege passes to the personal representative, who becomes the holder of the privilege.”  Id. “Thus, disclosing the privileged communications to the holder of the privilege does not itself violate the privilege.” Id.

At this point, the court of appeals’ opinion likely reflected what many practitioners believed to be the law in Colorado – the personal representative “stepped into the shoes” of the decedent for all purposes including the attorney-client relationship.  However, the Colorado Supreme Court disagreed.

On the issue of attorney-client privilege, the Court held the client “remains the attorney-client privilege holder even after death.”  Id. at ¶40.  However, by nominating a personal representative who may need to access privileged materials to effectively administer the estate, “a client impliedly waives any claim of attorney-client privilege with respect to communications necessary for estate administration, unless the client expressly manifested the intent to maintain the privilege.”  Id. at ¶42.  Thus, “[a] decedent’s former attorney may therefore provide a personal representative with privileged information necessary for the personal representative to settle the estate.” Id.  When the inevitable dispute arises over the scope of the implied waiver and what is “necessary for estate administration,” the “personal representative has the burden of proving that privileged material is necessary for estate administration.”  Id. at ¶42, n. 8.

As to the duty of confidentiality, the Court similarly noted an implied, but also limited, authorization for the disclosure of confidential information:

[A] decedent’s former attorney may provide the personal representative with confidential information necessary to settle the estate unless the decedent has expressly indicated otherwise. But the attorney cannot provide a decedent’s complete legal files to the personal representative unless the decedent gave informed consent for such broad disclosure in the will or elsewhere.

Id. at ¶45.

So, what about the Court’s prior language in Friedman noting that a personal representative succeeds to the rights and obligations of the decedent, effectively “stepping into the shoes” of the decedent?  The Court made sure to clarify that this language was “a quotation from the underlying district court’s order, which this court included in its factual summary” in Friedman.  Id. at ¶35, n. 7. “It did not originate in this court and does not reflect this court’s jurisprudence on the attorney client privilege.”  Id. at ¶35, n. 7.

[1] While not addressed here, the Colorado Supreme Court did consider the personal representative’s arguments that legal files are “property” that must be delivered to the personal representative under Colo. Rev. Stat. § 15-12-709.  On this issue, the Court concluded “a personal representative does not acquire a right to take possession of a decedent’s legal files under section 15 12 709 except for ‘documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills.’  Rabin, ¶ 24 (citing Colo. RPC 1.16A cmt. 1).