Want your legal files to stay private after your death? Better say it in your Will.

April 4, 2019

Author: Lee Katherine Goldstein

Whether you are a personal representative for a friend or relative, or a person who has been involved in legal matters during your lifetime, there are a few things you should know about the attorney-client privilege:

(1) the attorney-client privilege generally prevents outsiders from gaining unauthorized access to confidential communications between an attorney and client;

(2) under Colorado law, the attorney-client privilege survives the death of the client; and

(3) the personal representative of a client’s estate is entitled to take possession of the deceased client’s legal files held by the client’s attorneys.

The third point was an undecided question in Colorado until December of 2018 when the Colorado Court of Appeals decided the case of In Re Estate of Rabin, 2018COA183 (December 27, 2018).

In that case, Mr. Rabin’s surviving spouse, who was appointed personal representative of his estate pursuant to his will, requested all of Mr. Rabin’s client files from his former lawyer. The lawyer objected, citing the attorney-client privilege among other reasons.  The trial court agreed. However, on appeal, the Colorado Court of Appeals reversed.

The Court of Appeals looked to the plain language of the Probate Code, which states:

“[e]xcept as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property[.]”

C.R.S. §15-12-709. The appellate court decided that the client files in the possession of the decedent’s former attorney are “property” within the meaning of this section, and that therefore the Colorado Probate Code allows a personal representative to take possession of the files. The personal representative does not need to show that the files are needed to address any known or current dispute in the estate to access them.

The appellate court rejected the attorney’s argument that the attorney-client privilege should prevent a personal representative from gaining access to the client’s files. The court reasoned that by law, a personal representative essentially steps into the deceased person’s shoes; and therefore the personal representative becomes the holder of the attorney-client privilege and is not an outsider.

The appellate court also brushed off the attorney’s concern that Mr. Rabin may not have wanted his wife to have access to all of his legal files. The court pointed out that there are two ways that Mr. Rabin could have avoided that result. First, he could have appointed someone other than his wife to serve as his personal representative. And, second, he could have specifically stated in his will that his personal representative could not have access to some or all of his legal files.

The Court of Appeals left unanswered the question of the extent to which a personal representative’s fiduciary duties restrict him or her from disclosing the decedent’s privileged information.

Takeaways: To protect the privacy of your attorney-client communications after death, make a will, keep it up to date, appoint a specific person to act as your personal representative, and state whether that person should have access to your legal files.