Who Owns the Privilege?: Part I

February 20, 2019

Courts analyzing the attorney-client privilege's ownership rights necessarily determine the privileged documents' physical possession, as well as authority to assert and waive the privilege. Not surprisingly, such dispositive issues frequently generate sharply contested positions and somewhat surprisingly results.

In Rabin v. Freirich (In re Estate of Rabin), the court bluntly stated that "we are asked to reconcile two seemingly inconsistent long-standing legal maxims: (1) that the attorney-client privilege survives the death of the client and (2) that a decedent's personal representative has a right to take possession of all of the decedent's property." Ct. of Appeals No. 18CA0160, 2018 Colo. App. LEXIS 1870, at *1-2 (Colo. App. Dec. 27, 2018). The issue arose because decedent's widow (designated as his personal representative) claimed ownership of her late husband's lawyer's files -- involving "over forty separate matters over the course of many years," including several files related to her late husband's dealings with his previous wife. Id. at *2. The lawyer and the previous wife resisted the widow's efforts, arguing "that a decedent may not wish for his spouse or other surviving family members to know information contained in client files." Id. at *9. But the court rejected that argument, pointing to a Colorado statute that "grants the personal representative the right to client files absent a provision in the will stating otherwise." Id. The court concluded that the decedent's widow "steps into [her late husband's] shoes," and thus "is the rightful owner of the files and is the holder of the attorney-client privilege absent contrary direction in the will." Id. at *11.

Next week's Privilege Point will address the privilege ownership issue in the corporate setting.

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