Attorney-Client Privilege in Probate Administration and Litigation

In Colorado, the attorney-client privilege in probate administration and litigation protects communications made between clients and their attorneys for the purpose of obtaining legal advice.  This privilege is rooted in the principle that candid and open discussions by the client to the attorney, without fear of disclosure, will promote the orderly administration of justice.

Because the purpose of this privilege is to encourage clients to confide in their attorneys, it applies only to statements made in circumstances giving rise to a reasonable expectation that the statements will be treated as confidential. For example, a communication made by a client to an attorney while in the presence of a third party generally is not considered confidential and therefore is not privileged.

What are the Exceptions to the Attorney-Client Privilege?

Colorado law provides for several exceptions to the attorney-client privilege. The most common is the crime-fraud exception. This excepts confidential communications that are made for the purpose of aiding the commission of an ongoing, or a future, crime or fraud.

Broadly speaking, once the attorney-client privilege applies, it can only be waived by the client.  Additionally, because posthumous disclosure of confidential communications may be as feared as disclosure during a client’s lifetime, the attorney-client privilege in probate administration and litigation ordinarily survives the death of the client where the client has not previously waived it.

In certain circumstances, however, state law will deem the privilege impliedly waived after the client’s death. Specifically, when the client has nominated a personal representative in a will or other testamentary document, the client may be found to have impliedly waived the attorney-client privilege with respect to communications the personal representative finds necessary for estate administration. This may include communications to further the personal representative’s duties to take possession and control of the deceased client’s property or to settle and distribute the deceased client’s estate.

Additionally, Colorado law recognizes the testamentary exception to the attorney-client privilege. In a probate dispute between the testator’s heirs, devisees, or other parties who claim by succession from the deceased client, the testamentary exception permits the attorney who drafted the will to disclose communications concerning the will and transactions leading to its execution.  This exception allows the attorney to reveal communications related to the execution and validity of a decedent’s will in order to further the deceased client’s testamentary intent.  

Pursuing an Implied Waiver of the Attorney-Client Privilege in a Probate Situation

In practice, courts may recognize an implied waiver in these situations unless the client expressly manifested the intent to maintain the privilege.  The burden of establishing waiver is on the party seeking to overcome the privilege, and so it will fall to the personal representative or another interested party to prove that the privileged materials at issue are necessary to administer the deceased client’s estate or ascertain the deceased client’s testamentary intent.  Evaluating such assertions may require the court to conduct an in camera review of the relevant materials and to hold an evidentiary hearing.

Reynolds Gillette LLC

Reynolds Gillette LLC