by Richard Kiely
In the midst of a global pandemic and a presidential election, the Colorado Supreme Court still found a way to make news within the legal community by addressing the application of a lawyer’s duty of confidentiality and the attorney-client privilege after the death of a client.
For some time now, practitioners have known that the attorney-client privilege and duty of confidentiality both survive a client’s death. Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001) (“[t]he attorney client privilege generally survives the death of the client.”); Colo. Bar Ass’n Ethics Comm., Formal Op. 132 , at 1 (2017) (“A lawyer’s duty of confidentiality continues after the death of a client.”) However, until Freirich v. Rabin, 2020 CO 77, the Colorado Supreme Court had never addressed who holds such privileges and how they are waived. In Rabin, the Court held a deceased client’s legal files belong to the lawyer except for “documents having intrinsic value or directly affecting valuable rights, such as securities, negotiable instruments, deeds, and wills.” The Court further held that the decedent, and not the personal representative, holds the attorney-client privilege after death. However, by appointing a personal representative, the decedent impliedly waives the attorney-client privilege and duty of confidentiality as “necessary for the administration of the estate.” Read more