The Colorado Supreme Court, in the November 2020 opinion of Freirich v. Rabin, considered the right of a personal representative to access a decedent’s legal files, and the overarching concerns of attorney-client privilege and confidentiality implicated by disclosure.
The Facts of Freirich v. Rabin
Louis Rabin died, leaving everything to his surviving spouse, Claudine. Claudine was also named as Louis’s personal representative to manage his estate in probate. Louis’s former wife, Suyue, made a claim against the estate based upon a $200,000 promissory note. Claudine did not know that the note existed until Suyue made her claim in the Colorado probate.
Claudine, wanting more information, asked Louis’s long-time attorney, Mark Freirich, for all of Louis’s legal files, most of which had nothing to do with the promissory note. Freirich refused, citing confidentiality concerns. Claudine subpoenaed the legal files.
Freirich moved to quash the subpoena, arguing that producing Louis’s full set of files (about 45 individual files) would cause undue burden and expense and that the “attorney-client privilege has not been waived.”
Freirich eventually provided documents he had regarding the promissory note, after concluding that Suyue’s presence during his discussions with Louis had vitiated any privilege that would otherwise exist.
Claudine wanted more, and sought the production of the rest of the files. Freirich responded that:
- He did not have any additional information regarding the debt underlying the promissory note;
- His duty of confidentiality under Colorado Rule of Professional Conduct 1.6 prevented him from revealing more; and
- His refusal to comply was consistent with what he believed to be Louis’s wishes.
Claudine countered that:
- The legal files were Louis’s property, and section 15-12-709 of the Colorado Probate Code grants a personal representative the right to take possession of a decedent’s property;
- Louis waived his attorney-client privilege by nominating Claudine as his personal representative, and the privilege now belonged to the estate; and
- Freirich’s duty of confidentiality didn’t otherwise prevent remittance of Louis’s files to her, since Louis also waived his right to confidentiality by nominating her as the personal representative.
The Colorado trial court ruled in favor of Freirich. A division of the Colorado court of appeals reversed the trial court’s order quashing the subpoena, ruling in favor of the personal representative and her right to access decedent’s legal files. Freirich filed a petition for certiorari review, which the Colorado Supreme Court granted.
Does The Colorado Probate Code Entitle a Personal Representative To Take Possession Of a Decedent’s Full Set Of Legal Files?
No. A decedent’s legal files are not decedent’s property, and therefore a personal representative is not entitled to take possession of them under the Colorado Probate Code.
Section 15-12-709 of the Colorado Probate Code states, in pertinent part, that:
Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property; except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for the purposes of administration.
The Colorado Probate Code defines “property” to include “both real and personal property or any interest therein and anything that may be the subject of ownership.” § 15-10-201(42), C.R.S.
The Colorado Rules of Professional Conduct distinguish between a client’s property and a client’s files. Rule 1.16(d) requires lawyers to surrender certain papers to the client when the representation ends, but that responsibility is an ethical duty owed to the client, not something the client legally owns. Rule 1.16(d) refers to “papers and property,” and the comment thereto states that “[a] lawyer’s obligations with respect to client ‘property’ are distinct[from obligations with respect to a client’s files].”
The Colorado Supreme Court stated:
In keeping with the Colorado Rules of Professional Conduct’s distinction between a lawyer’s papers and a client’s property, we conclude that 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.” Because section 15-12-709 grants a personal representative only the right to a decedent’s “property,” and we conclude clients have no property rights in their complete files, it does not dos not bestow upon the personal representative of a decedent’s estate some intangible right to access the deceased client’s files.
Can a Lawyer Disclose a Deceased Client’s Legal Files To the Personal Representative?
Because both the attorney-client privilege and the duty of confidentiality survive a client’s death, a lawyer is generally prohibited from disclosing a client’s files, even to the personal representative, except as necessary to settle the decedent’s estate.
The deceased client remains the attorney-client privilege holder after death.
Are All Confidential Communications Between the Attorney And Deceased Client Privileged Forevermore?
No. A client’s actions before death can impliedly waive the attorney-client privilege under Colorado law.
The Colorado Supreme Court analyzed the possibility of implied waiver in light of the role of the personal representative under Colorado law:
A personal representative undertakes certain statutory duties with respect to estate administration. To effectively carry out those duties(as well as any other duties specified in the will), a personal representative may need access to material otherwise protected by the attorney-client privilege. Thus, by nominating a personal representative, 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.
The nomination of a personal representative is not a blanket waiver of confidentiality or privilege under Colorado law with respect to matters unnecessary for estate administration, such as legal files that are not at all necessary to the administration of the estate.
In sum, the Colorado Supreme Court held that:
- Colorado’s Probate Code doesn’t grant a personal representative a general right to take possession of all of a decedent’s legal files as “property” of the estate;
- A decedent’s lawyer is ordinarily prohibited from disclosing a decedent’s legal files, even to the personal representative; but
- A decedent’s lawyer may provide the personal representative with otherwise privileged or confidential documents if such disclosure is necessary to settle the decedent’s estate.