Personal Estate Representatives Assume Existing Attorney-Client Privilege

Court of Appeals finds attorney-client privilege continuing after death doesn’t conflict with representative’s right to access legal files

What if the personal representative for the estate of someone who has passed away needs to access legal files for the person that are protected by attorney-client privilege in order to execute the estate? In a 16-page decision, the Colorado Court of Appeals addressed a seeming conflict between established legal concepts: that attorney-client privilege continues after the client’s death, and that a deceased person’s personal representative has a right to possession of all the person’s property.

The Court of Appeals has concluded the two concepts don’t conflict after all, because a personal representative “steps into the shoes” of the deceased person and holds the existing attorney-client privilege.

Claudine Rabin filed a motion to compel her deceased husband’s former attorney, Mark Freirich, to release the husband’s entire client file. According to the opinion, Freirich had represented Louis Rabin in more than 40 different matters over many years. Claudine Rabin filed the motion after Freirich did not provide her documents related to promissory notes payable upon Louis Rabin’s death to his first wife and their daughter.

The Routt County District Court granted Freirich’s motion to reject Claudine Rabin’s subpoena and also awarded him attorney fees. It found neither Louis Rabin’s estate nor the personal representative held privilege to his legal files. The court subsequently denied Claudine Rabin’s motions to reconsider. 

She had also filed a motion to strike Freirich’s response filed related to the motion to reconsider, claiming Freirich lacked standing to file the response because he was not a party to the particular issue he responded to. The district court also denied Claudine Rabin’s motion to strike.

The Court of Appeals overturned the district court’s conclusion that Claudine Rabin did not have privilege to access her husband’s legal files, and  it also overturned the attorney fees award to Freirich. But the court rejected Claudine Sabine’s request for attorney fees, finding Freirich’s arguments are not irrational.

“We conclude that because the two maxims can coexist, they are not in conflict,” wrote Judge Ted Tow in the opinion. “Therefore, the latter rule should have been given effect in this case, and Claudine should have been given the files.”

Attorneys for Claudine Rabin and Mark Freirich could not be reached for comment. It’s unclear whether attorneys for Freirich will ask the Colorado Supreme Court to hear the case.

Claudine Rabin claimed Section 15-12-709 of the Colorado Revised Statutes gives her the right to possess client files related to Freirich’s representation of Louis Rabin. The statute says a personal representative has the right to possess the deceased person’s property unless the person’s will says otherwise. Meanwhile, attorney-client privilege is covered by Section 13-90- 107(1)(b) of the Colorado Revised Statutes.

Freirich and Claudine Rabin have disputed whether Louis Rabin’s client files fall within the scope of his property covered by 15-12-709. The Colorado Supreme Court addressed the issue in 1998 in People v. Felker. The court held American Bar Association standards related to attorney negligence in dealing with client property apply to an attorney who does not deliver client files. 

“Accordingly, it is clear that client files held by an attorney are property of the client,” wrote Tow in the Court of Appeals opinion. The opinion reasoned a plain reading of 15-12-709 gives a personal representative the right to access the deceased person’s client files. According to the decision, Louis Rabin’s will did not limit his personal representative’s ability to access or dispose of files held by his attorney. It granted the representative “full power and authority to sell, transfer, grant, convey, exchange, lease, mortgage, pledge, or otherwise encumber or dispose of any or all of [his estate’s] real or personal property.” 

Separate from the Colorado Revised Statutes, the Colorado Rules of Professional Conduct also require attorneys to keep confidentiality of information related to representing their clients. But Tow wrote a deceased person’s personal representative “step[s] into the shoes” of the person, and holds the existing attorney-client privilege.

“In other words, what appeared at first blush to be a conflict between a personal representative’s role and the survival of the attorney-client privilege is not a conflict after all,” he wrote. “Because Claudine has a right to the files, the trial court erred in granting the motion to quash.”

Though the Court of Appeals overturned the district court’s award of attorney fees to Freirich, the court also did not grant Claudine Rabin’s request for fees. She claimed Freirich’s opposition to her subpoena for client files and motion to compel their release did not have substantial justification. But the Court of Appeals pointed to the legal standard that claims “involving novel questions of law for which no determinative authority exists are not frivolous, groundless, or vexatious.”

At the same time, an argument about a question of first impression can still be groundless if the party doesn’t offer any rational argument to support it. 

“Here, we cannot conclude that Freirich failed to advance a rational argument,” wrote Tow in denying Claudine Rabin’s request for attorney fees. 

— Julia Cardi

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