Attorney-Client Privilege

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

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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