I, Being of Sound Mind, Hereby Bequeath My Privilege to …

Here is a privilege question you don’t see every day—can one bequeath her attorney–client privilege? We know that the privilege survives one’s death, see the Vince Foster case, so may a lawyer give his deceased client’s files—which contain privileged communications—to the estate’s personal representative?

A Colorado court said yes—a post-death property-transfer statute requires the transfer of a decedent’s property to the personal representative, including files—and, consequently, privileged information—held by the decedent’s lawyer. The court, however, refused to answer a significant follow-up question. In re Estate of Louis Rabin, 2018 WL 6801821 (Colo. Ct. App. Dec. 27, 2018). You may read the opinion here.

Marriage—Divorce—Marriage—Death

Lawyer Mark Freirich represented Lou Rabin in over 40 matters throughout the years. Lou, once married to Suyue, was married to Claudine when he died in 2017. Lou’s Last Will and Testament named Claudine as his personal representative in the estate’s administration.

As it turns out, lawyer Freirich had prepared a couple of promissory notes from Lou to Suyue that became due upon Lou’s death. Claudine, as the estate’s personal representative, subpoenaed Lou’s files from lawyer Freirich. Freirich refused, claiming that Lou was the privilege holder, the privilege survived Lou’s death, and he was duty-bound to prevent disclosure.

Privilege vs. Property Transfer

Colorado’s decedent’s estates law provides that, unless the Last Will & Testament provides otherwise (remember this phrase), the personal representative has a right to take possession of “the decedent’s property.” The Rabin court held that “property” includes files maintained by the decedent’s attorney, and that “a personal representative ‘has a right to’ client files held by an attorney for a decedent, except where a will provides otherwise.”

Colorado’s attorney–client privilege law and ethics rule 1.6 prevent Freirich from disclosing Lou’s privileged and confidential information, so how do you reconcile those obligations with the property-transfer law?

Reconciliation Ruling

No conflict, the court ruled, because the personal representative “effectively steps into the shoes of the decedent.” The representative becomes the client, and “the right to claim the attorney–client privilege passes to the personal representative, who becomes the holder of the privilege.”

Unanswered Question

Freirich’s concern—and all lawyers’ concern—is that if privileged communications transfer, then More…

Court Rejects Privilege for “Reserve Amount” Set by In-House Claims Counsel

If an insurance company may have to pay a claim, it typically sets aside a sum of money—the reserve—to fund that claim if and when payment becomes necessary. And if the company’s in-house claims counsel decides the reserve amount, the question arises whether the attorney–client privilege or work-product doctrine protects that decision from discovery.

The Arizona federal court, applying federal law, rejected a surety company’s privilege and work-product arguments, and ordered it to disclose its reserve amount to its adversary. The court made this ruling even though the company’s Senior Claims Counsel “solely” set the amount “in his capacity as legal counsel.” Western Surety Co. v. United States, 2018 WL 6788665 (D. Ariz. Dec. 26, 2018). You may read the decision here. More…

Mamma Mia! Don’t Bring Your Parents to a Lawyer Meeting

A young adult, injured and likely nervous, takes her parents to an initial meeting with her personal-injury lawyer. Does the privilege protect this discussion from discovery? In a case of first impression, the Colorado Supreme Court rejected the privilege because the parents’ presence breached the confidentiality element of the attorney–client privilege. Fox v. Alfini, 2018 WL 6441601 (Colo. Dec. 3, 2018). You may read the decision, including the concurring and dissenting opinions, here.

How Did This Happen?

Kayla Fox, in her early 30s, suffered a stroke after receiving treatment from chiropractor William Alfini. Wondering if she had a professional-negligence claim against Alfini, Fox met with a lawyer. Fox’s parents accompanied her and participated in the lawyer meeting. Remarkably, the lawyer recorded the meeting.

Learning of the meeting, the recording, and the parents’ attendance, Alfini’s lawyers moved to compel the recording’s production. Fox, of course, claimed that the attorney–client privilege protected the recording from discovery, but Alfini argued that the parents’ presence eliminated the confidentiality element and, thus, the privilege.

And this dispute set up a Supreme Court clash. More…