A mother visits her attorney to discuss her estate plan. She expects that the conversations she has with her attorney will be forever confidential and privileged, particularly when she wishes to guard uncomfortable realities from her family members, such as her desire to disinherit her son. Upon the mother’s death, her disinherited son figures out that he is in fact removed from her estate plan. Here we have the classic scenario in which a snubbed child wants to challenge the provisions in the estate plan to prove that the decedent did not intentionally fail to provide for him. But with the mother now deceased, how do we determine her actual intent?
The mother’s estate planning attorney is in the next best position to ascertain her intent, but doesn’t the attorney’s duty of confidentiality to the mother prevent him from disclosing any information he may have regarding her intent, specifically when the mother thought she was speaking in confidence?
The attorney-client privilege generally applies to confidential matters communicated by or to the client in the course of obtaining legal counsel unless the privilege has been waived or consented to by the client or unless an exception applies. C.R.S. § 13-90-107(1)(b); People v. Trujillo, 144 P.3d 539, 542 (Colo. 2006). The privilege encourages the client to speak fully and frankly with his attorney without fear that the communications will someday be disclosed. Allowing these communications to be revealed following a client’s death may result in the posthumous exposure of detrimental information concerning a client’s reputation or impose possible harm to friends and family. Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998). On the flip side, prohibiting the disclosure may frustrate the client’s interest under certain circumstances, specifically in cases where a deceased client’s intent is at issue in a will contest suit.
Colorado, like a majority of jurisdictions, maintains that the attorney-client privilege continues after the death of a client. Wesp v. Everson, 33 P.3d 191, 200 (2001). This means the privilege extends to the client’s estate, so the personal representative of the client’s estate stands in the shoes of the decedent and becomes the holder of the privilege. The personal representative is accordingly in a position to waive the privilege – and allow the decedent’s communications to be disclosed – if a potential litigant or interested party is seeking information from the attorney regarding the decedent’s intent.
Colorado also recognizes the aptly named testamentary exception to privileged attorney-client communications. Under the testamentary exception, the attorney may, but does not have to, disclose privileged communications that would otherwise be protected if sought by the decedent’s heirs in a will contest suit. See In re Estate of Shapter, 35 Colo. 578 (1905). While the privilege normally exists to protect the client’s interest, the disclosure permitted by the testamentary exception may help in revealing the decedent’s testamentary intent and, thereby, furthering the client’s interest so that the client’s property is distributed as desired.
Even if the statutory attorney-client privilege rules apply, however, an attorney’s ethical duty of confidentiality to the client may preclude the disclosure of information absent consent or a court order. In a recent formal ethics opinion, the Colorado Bar Association Ethics Committee stated that in the absence of a client’s or personal representative’s consent to disclose protected communications, the attorney needs a court order authorizing the disclosure in order to be in compliance with the attorney’s duty of confidentiality. See Final Opinion 132: Duties of Confidentiality of Will Drafter upon Death of Testator, adopted September 26, 2017; Colo. RPC 1.6. Even if the personal representative waives the privilege, the attorney may still be precluded from disclosing the information if the client told the attorney that it be kept unqualifiedly confidential or if disclosure of the information would embarrass or otherwise be detrimental to a material interest of the client.
In other words, the mother’s intent may finally be determined through the drafting attorney’s testimony, but maybe not without a court order approving the disclosure of otherwise protected communications.