Freirich v. Rabin.

2020 CO 77. No. 19SC86. Probate Law—Attorney-Client Privilege—Duty of Confidentiality—Personal Representative.

November 2, 2020

A decedent’s personal representative subpoenaed the decedent’s former attorney for the decedent’s legal files. The district court quashed the subpoena, but a Court of Appeals division reversed the order. The division held that client files are a decedent’s “property” under CRS § 15-12-709, so the personal representative takes possession of them and holds the attorney-client privilege for the decedent.

The Supreme Court held that a decedent’s complete legal files are not the decedent’s property under CRS § 15-12-709. Legal files belong to the lawyer, except for documents having intrinsic value or directly affecting valuable rights. And lawyers’ duty to surrender certain papers to former clients flows from professional ethics, not property law. Further, the decedent holds the attorney-client privilege after death, not the personal representative; both case law and the policy that underlie the privilege compel that result. However, the act of appointing a personal representative impliedly waives both the attorney-client privilege and Colorado Rule of Professional Conduct 1.6’s duty of confidentiality as necessary for the administration of the estate. Accordingly, the division’s judgment was reversed and the case was remanded for further proceedings.