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Colo. Supreme Court: Presence of 3rd Party Waives Attorney-Client Privilege

  • December 6th, 2018
  • Miles Buckingham
  • Comments Off on Colo. Supreme Court: Presence of 3rd Party Waives Attorney-Client Privilege

The Colorado Supreme Court  entered an opinion resolving an attorney-client privilege issue that has long been open under Colorado law – whether and when the presence of a non-client destroys the attorney-client privilege. Pursuant to the opinion authored by Justice Gabriel, the answer is – always, except when the presence of the third person is reasonably necessary for the communication to take place.

In In re Fox, a Plaintiff’s attorney interviewed his client, a 30 year-old woman in the presence of her parents. The interview with the client, who later claimed to have diminished mental capacity due to chiropractic malpractice, was recorded by the attorney. The defendants moved to compel production of the recording, and Plaintiff asserted the privilege. The trial court granted the defense motion, holding that the parents’ presence destroyed the privilege. Plaintiff’s counsel moved to reconsider, arguing for the first time that the parents were prospective clients, and that they were her agents, and that they shared common legal interests with Plaintiff. The trial court declined to consider the argument.

The opinion not only addresses the attorney-client privilege, but it also discusses the standards which apply to motions to reconsider. Motions to reconsider are disfavored, and the trial court does not abuse its discretion in rejecting arguments which could have been raised in the initial briefing.

In his concurrence, Justice Hood points out that the opinion does not address the work product doctrine, which was not timely raised. Presumably, according to Hood, the work product doctrine would have protected at least some of the information on the recording. 

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