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.
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?
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.”
Freirich’s concern—and all lawyers’ concern—is that if privileged communications transfer, then