Colorado Court Finds Attorney-Client Privilege Survives Client’s Death

The attorney-client privilege and duty of confidentiality are two of the most essential recognized privileges. They protect conversations and dealings between a client and their attorney. Colorado courts have consistently maintained these privileges to ensure full communication between lawyers and their clients, allowing the parties to resolve legal issues effectively. Although the privileges are critical during a client’s lifetime, it is equally important that individuals understand how these privileges extend after the client’s passing.

In a recent opinion, the Colorado Supreme Court addressed the critical issue regarding which party holds the attorney-client privilege after the client’s death. The record indicates that when the decedent passed, he left all of his possessions to his widow and named her his personal representative. However, the decedent’s former wife made a claim against the estate based on promissory notes. The man’s widow did not know of the notes’ existence until she received the claim. The widow asked the decedent’s attorney for all of her deceased husband’s legal files. However, the attorney refused, citing confidentiality. In addressing the woman’s request, the court reviewed the interplay between attorney-client privilege, confidentiality, and a personal representative’s duty to settle a decedent’s estate.

Under Colorado Probate, Trusts, and Estates Law, section 15-12-709, grants personal representatives the right to a decedent’s property. Colorado Probate Code defines “property” to include real and personal property or any interest that may be subject to ownership. When a personal representative requests access to intangible property, the court must evaluate whether the decedent had any property right to them. Generally, clients do not have a property right to their full legal files.

Enmeshed in this analysis is the reach and scope of Rule 1.6 of the Model Rules of Professional Conduct. Rule 1.6 addresses client-lawyer relationships, and in most cases, lawyers cannot reveal a client’s confidential communications, even if the client dies. However, there is an exception if disclosure of otherwise privileged communication was necessary to settle the decedent’s estate. Colorado’s ethical rules of professional conduct distinguish between a lawyer’s papers and a client’s property. Courts generally find that a personal representative can only take possession of a decedent’s legal files if the documents directly affect rights, securities, instruments, deeds, or wills. The client holds both the attorney-client privilege and duty of confidentially, and therefore they can waive either of these duties.

In this case, the plaintiff conceded that section 15-12-709 did not confer rights to the legal files; however, she argued that as her husband’s personal representative, she stepped into his shoes regarding the attorney-client privilege and duty of confidentiality. However, the court held that the woman did not meet any of the exceptions to either privilege. Ultimately, there was no evidence that the decedent’s legal files were necessary to settle the estate. Therefore, the attorney maintained the duty of confidentiality to withhold all unnecessary information.

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