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.