On November 2, 2020, the Colorado Supreme Court issued is ruling in In re Estate of Louis Rabin, No. 19SC86, 2020 CO 77, and reversed a division of the Colorado Court of Appeals’ which had held that a personal representative was entitled to take possession of client files of the decedent as “property” under Colorado’s Probate Code, C.R.S. § 15-12-709, because the personal representative steps into the shoes of the decedent for purposes of attorney-client privilege. Cohen|Black Law LLC attorneys represented the Petitioner, the longtime attorney for the now deceased-client (“decedent”) who had been subpoenaed by the personal representative to produce all legal files in his possession. In granting reversal, the Colorado Supreme Court sided with Cohen|Black Law attorneys on all three issues: addressing property rights in client files, whether the attorney-client privilege automatically passes to the personal representative upon a decedent-client’s death, and the circumstances under which the Colorado Rules of Professional Conduct would allow a lawyer to reveal information relating to the representation of a deceased client to the personal representative. The decision closes several loopholes through which attorneys in Colorado were subject to subpoenas, litigation, and ambiguity as to the interplay between the Probate Code and attorney professional ethics. Below is an explanation of the key holdings by the Colorado Supreme Court.

The Court was first asked to determine whether a decedent’s legal files are property within the meaning of C.R.S. § 15-12-709. It concluded they are not.

On the first question, the decedent’s personal representative argued the decedent had a property right to their full legal files and that by operation of C.R.S. section 15-12-709 of the Probate Code, a personal representative takes possession or control of all decedent’s files upon death of the decedent. The Court rejected this theory. While it recognized “property”, under C.R.S. §15-12-709 includes tangible and intangible property rights, it did not include a vested property right in a client’s legal files. The Court confirmed that an attorney’s duty to provide “papers and property to which the client is entitled” is not rooted in property law, but rather is grounded in Colorado Rule of Professional Conduct 1.16(d). The Court recognized that Rule 1.16(d)’s reference to “paper’s and property” creates a distinction between a client’s property and “[a] client’s files . . . relating to a matter that the lawyer would usually maintain in the ordinary course of practice.” Keeping with the Rule’s distinction between a lawyers papers and client property, the Court concluded that following death of the client, legal files belong to the lawyer except for documents having intrinsic value or directly affecting valuable rights of the former client. In short, the client file is not property under the Probate Code.

The Court was next asked to determine whether a personal representative becomes the holder of the attorney-client privilege upon decedent’s death. The Court held she does not.

On the second question, the Cohen|Black attorneys argued on behalf of the Petitioner that the attorney-client privilege does not pass to a personal representative upon decedent’s death because concluding such would obviate the well-founded legal principle that the attorney-client privilege survives the death of the client and would overturn important legal precedent in Colorado, including Wesp v. Everson,. The Court agreed with Petitioner and reasoned that both the attorney-client privilege and Colorado Rule of Professional Conduct 1.6 require that attorneys maintain confidentiality unless certain exceptions apply, including waiver by the client. The Court concluded the decedent continues to hold the attorney-client privilege after death, not the personal representative.

The Court was next asked to determine whether the Colorado Rules of Professional Conduct permit a lawyer to reveal a deceased client’s protected information to a personal representative. The Court held that is a fact-specific inquire based on the circumstances.

Finally, the Court considered whether the act of appointing a personal representative to administer the estate of a decedent impliedly waives both the attorney-client privilege and Rule 1.6’s duty of confidentiality. The Court answered this question in the affirmative but found that the waiver is limited for the administration of the probate estate. In so holding, the Court determined that nominating a personal representative impliedly waives any claim of attorney-client privilege with respect to communications necessary for estate administration, unless the client expressly manifested the intent to maintain the privilege. Practically speaking, the Court recognized that a decedent’s former attorney may provide the personal representative with confidential information necessary to settle the estate but that he must hold any information and communications not necessary to settle the estate as confidential and privileged. In sum, the attorney cannot provide a decedent’s complete legal files to the personal representative unless the decedent gave informed consent for this broader disclosure.