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Attorney-Client Privilege Survives Client’s Death, But….

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Attorney-Client Privilege

Most people have at least a vague understanding of the attorney-client privilege. In most circumstances, what you say to your lawyer is private. Your communications are confidential, and your lawyer may not share them.

What happens after you die?

Even after your death, your lawyer may not share your communications. But that does lead to one of the main exceptions to the attorney-client privilege rules. Your lawyer can reveal communications to the extent necessary to carry out your estate plan. That might mean the lawyer can explain how your will (or trust) was signed, or what you meant by some provisions.

Generally, though, your lawyer can not reveal confidential communications — even after your death. You own the attorney-client privilege, incidentally — it does not belong to your lawyer. That means a lawyer who really, really wants to reveal privileged communications may not do so.

Your lawyer’s files also belong to you. And those files are property — which passes in accordance with your estate plan. What happens when the physical files include confidential communications? Who gets to decide whether to reveal the contents of those files?

A recent Colorado case

Last week, the Colorado Court of Appeals addressed just this conflict. During his life, Louis Rabin had hired Steamboat Springs, Colorado, lawyer Mark A. Freirich to handle a number of property and business matters for him. Mr. Freirich had not prepared Mr. Rabin’s will, but he still had some forty separate files he had opened for Mr. Rabin.

After Mr. Rabin’s death, his widow petitioned for appointment as personal representative of his estate. After her appointment, she demanded that Mr. Freirich turn over all of her late husband’s legal files.

Mr. Freirich objected. He insisted that his communications with Mr. Rabin were privileged, and that the privilege survived even after Mr. Rabin’s death. After Mrs. Rabin subpoenaed the files, Mr. Freirich moved to quash the subpoena.

One issue in the probate proceeding involved real estate transactions, prepared by Mr. Freirich, between Mr. Rabin, his ex-wife, and their daughter. Mrs. Rabin insisted that she needed those files to resolve the disputes. Mr. Freirich released portions of those files, but insisted that the remaining files remained privileged and confidential.

The Colorado probate judge agreed with Mr. Freirich. He ordered that the files should remain with the attorney, and he awarded fees against the estate for the cost of protecting the privileged files.

The appellate court disagrees

On appeal, the Colorado Court of Appeals reversed the probate court decision. The appellate judges ordered Mr. Freirich to turn over all of his late client’s files, and cancelled the award of legal fees.

In the appellate court’s view, the files were just property of Mr. Rabin’s. Consequently, his personal representative had the authority to receive and manage the property — and, in fact, she had a duty to do so.

Before the trial court entered its order, the dispute among the Mr. Rabin’s widow, his ex-wife and his daughter had been resolved. That was one reason Mr. Freirich had given for not turning over the files — they were no longer even needed, he argued. The Court of Appeals was not impressed by this argument. The status of a dispute (or potential dispute) was irrelevant to the personal representative’s right to receive estate assets.

Might Mrs. Rabin reveal confidential communications that Mr. Rabin would not have wanted to be made public? That was also irrelevant to the appellate court. The files — and their contents — belonged to Mr. Rabin’s estate, and should be turned over. Estate of Rabin, December 27, 2018.

What about Arizona?

Would the Arizona courts reach the same conclusion? Likely so.

The Colorado court correctly identified the physical files as property belonging to the estate. The personal representative of an estate has a right to receive that property, and to evaluate whether there might be additional claims by, or against, the estate.

Yes, the attorney-client privilege survives the death of the client. But the personal representative of the deceased client’s estate steps into the shoes of the decedent, and has control over the privilege just as the client had during life.

Can you imagine things you would not want even your personal representative to know? If so, there are ways to make sure the attorney-client privilege outlives you. If this is important to you, talk with your lawyer about how to make sure that your legal secrets remain unshared.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.