State Courts Address Outsiders’ Privilege Impact: Part III

January 16, 2019

Last week’s Privilege Point discussed a somewhat surprising Colorado Supreme Court decision holding that a stroke victim’s parents’ presence during a meeting with her lawyer aborted privilege protection.  Fox v. Alfini, Case No. 18SA92, 2018 CO 94, 2018 Colo. LEXIS 962 (Colo. Dec. 3, 2018).  Significantly, plaintiff’s lawyer initially missed three arguments supporting protection claims — two of which would almost surely have been winners.

After the lower court denied her privilege claim, plaintiff Fox moved for reconsideration.  In seeking reconsideration, her lawyer argued “for the first time” that:  (1) Fox’s “parents were prospective clients” and therefore inside privilege protection; (2) Fox’s “parents were her agents and shared common legal interests with her”; and (3) “the [initial consultation] recording was protected under the work-product doctrine and that defendants had not demonstrated substantial need to discover that recording.”  2018 Colo. LEXIS 962, at *7.  The lower court rejected these additional arguments, noting that they had not been raised in earlier pleadings or at the initial hearing.  The Colorado Supreme Court upheld the lower court’s refusal “to consider arguments that Fox had raised for the first time in her motion for reconsideration.”  Id. at *8.

This unfortunate result highlights the need to assess all privilege protection grounds, and especially consider the dramatically different work product doctrine protection.  In this case:  (1) if the lawyer had jointly represented (or was considering jointly representing) Fox and her parents, the privilege would have protected their communications; and (2) even if not, the parents’ presence presumably would not have destroyed the robust work product protection — and they probably could even have created protected work product.