Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch’s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association’s homepage at http://www.cobar.org.

ADVANCE SHEET HEADNOTE November 2, 2020

No. 19SC86, Freirich v. Rabin—Probate Law—Attorney-Client Privilege—Duty of Confidentiality.

A decedent’s personal representative subpoenaed the decedent’s former

attorney for the decedent’s legal files. The district court quashed the subpoena,

but a division of the court of appeals reversed that order. The division held that

client files are “property” of the decedent under section 15-12-709, C.R.S. (2020),

so the personal representative takes possession of them, and that the personal

representative holds the attorney-client privilege for the decedent.

The supreme court holds that a decedent’s complete legal files are not the

decedent’s “property” under section 15-12-709. Legal files belong to the lawyer,

except for documents having intrinsic value or directly affecting valuable rights.

And lawyers’ duty to surrender certain papers to former clients flows from

professional ethics, not property law. Further, the supreme court holds that the

decedent holds the attorney-client privilege after death, not the personal

representative. Both case law and the policy that underlie the privilege compel that result. But the supreme court also holds that the act of appointing a personal

representative impliedly waives both the attorney-client privilege and Colorado

Rule of Professional Conduct 1.6’s duty of confidentiality as necessary for the

administration of the estate. Accordingly, the supreme court reverses the

judgment of the court of appeals and remands the case for further proceedings. The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 19SC86 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 18CA160

In re Estate of Louis Rabin, deceased.

Petitioner:

Mark Freirich,

v.

Respondent:

Claudine Rabin.

Judgment Reversed en banc November 2, 2020

Attorneys for Petitioner: Cohen Black Law, LLC Nancy L. Cohen Nicole Marie Black Denver, Colorado

Attorneys for Respondent: Mark J. Fischer, Esq., Inc. Mark J. Fischer Steamboat Springs, Colorado

Legal Tree, LLC Lisel A.T. Petis Steamboat Springs, Colorado

JUSTICE HOOD delivered the Opinion of the Court. ¶1 When Louis Rabin died, he left everything to his widow, Claudine Rabin.1

He also named her as his personal representative to manage his estate in probate,

a task that would prove more challenging than she’d anticipated. Louis’s former

wife, Suyue Rabin, made a claim against the estate based on a couple of

promissory notes. These notes—totaling $200,000 and payable to Suyue upon

Louis’s death—were executed while Louis was married to Claudine. But Claudine

didn’t know the notes existed until she fielded the claim.

¶2 Wanting more information, Claudine asked Louis’s longtime attorney,

Mark Freirich, for all of Louis’s legal files, most of which had nothing to do with

the notes. He refused, citing confidentiality concerns. She then subpoenaed the

files, placing two time-honored legal principles on a collision course: client-lawyer

confidentiality (given practical effect by the attorney-client privilege and Colorado

Rule of Professional Conduct 1.6) and a personal representative’s duty to settle a

decedent’s estate.

¶3 We hold that (1) Colorado’s Probate Code doesn’t grant a personal

representative a general right to take possession of all of a decedent’s legal files as

“property” of the estate; (2) a decedent’s lawyer is ordinarily prohibited from

1 Because some individuals in this case share a last name, we will refer to those individuals by their first names.

2 disclosing a decedent’s legal files, even to the personal representative; but (3) a

decedent’s lawyer may provide the personal representative with otherwise

privileged or confidential documents if such disclosure is necessary to settle the

decedent’s estate.2

I. Facts and Procedural History

¶4 Freirich served as Louis’s attorney for over thirty years. During that time,

he handled dozens of matters for Louis. As relevant here, Freirich helped prepare

two promissory notes that became payable to Louis’s former wife, Suyue, upon

Louis’s death.3

¶5 Louis died testate in 2017. His will made no mention of the notes. Instead,

it simply gave his entire estate to his widow, Claudine. Louis also named her as

his personal representative, granting her “full power and authority to sell, transfer,

2 We recognize that the decedent in this case died with a will and is thus a “testator.” See Testator, Black’s Law Dictionary (11th ed. 2019) (“Someone who has made a will; esp., a person who dies leaving a will.”). For ease of reference, however, we use the more general “decedent.” See Decedent, Black’s Law Dictionary (11th ed. 2019) (“A dead person, esp. one who has died recently.”).

3 It seems that Louis and Suyue entered into only a single agreement for him to pay her $200,000 upon his death. But there are apparently two copies of this agreement: one from August 2007 and another notarized copy from March 2008. Although the agreements, absent the notarization on the March 2008 copy, look identical to us, the parties intermittently refer to multiple promissory notes. Thus, out of an abundance of caution, we refer to two promissory notes instead of one.

3 grant, convey, exchange, lease, mortgage, pledge or otherwise encumber or

dispose of any or all of the real or personal property of my estate.” Freirich wasn’t

involved in drafting this will.

¶6 Once Claudine began probate proceedings, Suyue filed a claim against the

estate for payment of the promissory notes. Claudine’s attorney, Mark Fischer,

testified that Claudine had no prior knowledge of the notes. So, seeking to

investigate the validity of the claim and believing that Freirich might have drafted

the notes, Fischer contacted Freirich and requested Louis’s legal files. Freirich

responded by asking him to “address why the information . . . is not covered by

the attorney-client privilege.” Fischer later subpoenaed Freirich for the files.

¶7 Freirich moved to quash the subpoena, arguing that producing Louis’s full

set of files (which, according to Freirich, encompasses about forty-five individual

files) would cause undue burden and expense and the “attorney-client privilege

has not been waived.” Fischer then contacted Freirich, clarifying that he was

“seeking the paperwork in [Freirich’s] files that may have been generated around

[the date of the notes] to understand the consideration” for them.

¶8 Freirich eventually provided the documents he had regarding the

promissory notes, which included copies of the notes and two pages of Freirich’s

handwritten notes. He did so after concluding that Suyue’s presence during his

discussions with Louis had vitiated any privilege that would otherwise exist.

4 ¶9 Still, Claudine sought production of the rest of the files. Freirich responded

that he didn’t have “any additional information regarding the underlying debt

reflected in the Promissory Note[s]”; his duty of confidentiality under Colorado

Rule of Professional Conduct 1.6 prevented him from revealing more; and his

refusal to comply with the subpoena was “consistent with what [he] believe[d] to

be [Louis’s] wishes.” Claudine countered that Freirich had to produce the files

because they were Louis’s property, and section 15-12-709, C.R.S. (2020), grants a

personal representative the right to take possession of a decedent’s property; Louis

waived his attorney-client privilege by nominating her as his personal

representative, and the privilege now belongs to Louis’s estate; and Freirich’s duty

of confidentiality didn’t otherwise prevent remittance of Louis’s files to her, since

Louis also waived his right to confidentiality by nominating her as the personal

representative.

¶10 After a hearing, the trial court granted Freirich’s motion to quash. Without

addressing Claudine’s alleged entitlement to the files under section 15-12-709, the

trial court found that Louis’s attorney-client privilege survived his death; Louis’s

estate didn’t become the privilege holder, so neither it nor the personal

representative could waive the privilege “to compel Mr. Freirich to turn over his

files”; and Freirich could not “dispense with the privilege in order to facilitate the[]

probate proceedings.”

5 ¶11 Claudine filed a motion to reconsider, but she and Suyue settled Suyue’s

claim against the estate before the trial court ruled on that motion. The court later

denied the motion as moot.

¶12 Claudine appealed, seeking the rest of the files. A division of the court of

appeals reversed the trial court’s order quashing the subpoena. In re Estate of Louis

Rabin,

, ¶ 2, __ P.3d __. The division reasoned that client files are the

property of the client. Id. at ¶¶ 17, 28 (citing People v. Felker,

(Colo. 1989)). So, under section 15-12-709, “a personal representative ‘has a right

to’ client files held by an attorney for a decedent, except where a will provides

otherwise.” Estate of Rabin, ¶ 18 (quoting § 15-12-709).

¶13 The division also held that a personal representative becomes the attorney-

client-privilege holder: The personal representative “succeeds to the rights and

obligations of the Estate’s decedent, effectively ‘stepping into the shoes’ of the

decedent.” Id. at ¶ 24 (quoting Colo. Nat’l Bank v. Friedman,

(Colo.

1993)). Accordingly, “disclosing the privileged communications to the holder of

the privilege does not itself violate the privilege.”

¶14 Freirich filed a petition for certiorari review, which we granted.4

4 We granted certiorari to review the following issues: 1. Whether a decedent’s legal files are property within the meaning of section 15-12-709, C.R.S. (2019). 6 II. Analysis

¶15 After identifying the standard of review, we examine whether section

15-12-709 entitles a personal representative to take possession of a decedent’s full

set of legal files. Because section 15-12-709 grants a personal representative only

the right to a decedent’s “property,” and we conclude clients have no property

rights in their complete files, it does not. We next address whether the attorney-

client privilege or a lawyer’s duty of confidentiality under Rule 1.6 otherwise

prevents a lawyer from producing a deceased client’s legal files. Because both the

attorney-client privilege and the duty of confidentiality survive a client’s death, a

lawyer is generally prohibited from disclosing a client’s files, even to the personal

representative, except as necessary to settle the decedent’s estate.

2. Whether a decedent’s personal representative becomes the holder of the decedent’s attorney-client privilege upon the decedent-client’s death.

3. Whether the Rules of Professional Conduct permit a lawyer to reveal information relating to the representation of a deceased client to the decedent-client’s personal representative.

4. Whether the court of appeals erred in holding that the personal representative had a right to the decedent’s legal files. 7 A. Standard of Review

¶16 We review de novo issues of statutory interpretation, Beren v. Beren,

,

; application of the attorney-client privilege,

People in Interest of A.N-B.,

,

, 1276–77; and

“questions of law regarding the Rules of Professional Conduct,” Mercantile

Adjustment Bureau, LLC v. Flood,

,

.

B. Client Files as “Property” Under Section 15-12-709

¶17 Section 15-12-709, part of the Probate Code, states in relevant part that

[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; except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for the purposes of administration.

(Emphasis added.) Thus, whether section 15-12-709 entitles Claudine to take

possession or control of Louis’s legal files depends on whether they qualify as his

“property.”

¶18 Both parties rely on Colorado Rule of Professional Conduct 1.16(d). That

rule states,

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that

8 has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

Colo. RPC 1.16(d) (emphasis added). Specifically, the parties dispute whether

Freirich’s obligation to surrender Louis’s “papers and property” upon termination

of the attorney-client relationship vested in Louis a property right to his legal files

that passed to Claudine under section 15-12-709.

¶19 Freirich recognizes his duty under Rule 1.16(d), yet he argues that Louis’s

right to access his files was an intangible property right and that section 15-12-709’s

specific reference to “real property or tangible personal property” limits the

statute’s scope to exclude forms of intangible property. Claudine counters that

Freirich’s duty under Rule 1.16(d) vested in Louis a tangible property right to the

“papers” that comprise his legal files that passed to her as personal representative.

But, according to Claudine, even if Louis had nothing more than an intangible

property right to access his files, Claudine could still take control of that right

under section 15-12-709.

¶20 We agree with Claudine that section 15-12-709 grants a personal

representative the right to take possession or control of all of a decedent’s

property, whether tangible or intangible, unless the decedent’s will states

otherwise. The Probate Code defines “property” to include “both real and

personal property or any interest therein and anything that may be the subject of

ownership.” § 15-10-201(42), C.R.S. (2020). This court has previously interpreted 9 that definition to include intangible property rights. See Price v. Sommermeyer,

(Colo. 1978) (concluding that the Probate Code’s definition of

“property” includes a potential right of indemnity, no matter the “intangible

character []or the contingent nature” of that right).

¶21 And contrary to Freirich’s assertion, section 15-12-709’s later reference to

“real property or tangible personal property” doesn’t limit the statute’s reach to

those two categories. The statute mentions those types of property only to clarify

that a presumptive recipient may take possession of such property during estate

administration. It omits reference to intangible property because the very nature

of intangible property prevents its recipient from taking physical possession of it,

see Intangible, Black’s Law Dictionary (11th ed. 2019) (“Not capable of being

touched.”), not because section 15-12-709 encompasses only real property and

tangible personal property.

¶22 But whether section 15-12-709 reaches intangible property doesn’t tell us

whether it grants Claudine access to the files. Instead, the relevant question is

whether Louis had any property right in them at all that would grant her access.

¶23 Although Rule 1.16(d) required Freirich to provide Louis with “papers and

property to which the client is entitled” upon termination of the attorney-client

relationship, that duty is grounded in ethics, not property law. Corrigan v.

Armstrong, Teasdale, Schlafly, Davis & Dicus,

(Mo. Ct. App. 1992)

10 (“‘Surrendering papers and property to which the client is entitled’ is one example

of a step an attorney must take to protect [a former client’s] interest. But, this

duty . . . need not be supported or justified by any property concepts.” (quoting

Mo. Sup. Ct. R. 4-1.16)); Colo. Bar Ass’n Ethics Comm., Formal Op. 104, at 2

(revised Sept. 2018) (“[A] client’s entitlement [under Rule 1.16(d)] is not

completely defined by traditional concepts of property and ownership. Rather,

the entitlement is based on the client’s right to access the file related to the

representation so as to enable continued protection of the client’s interests.”).5

Moreover, Rule 1.16(d)’s reference to “papers and property” suggests that a

client’s property is distinguishable from “[a] client’s files . . . relating to a matter

that the lawyer would usually maintain in the ordinary course of practice.” Colo.

RPC 1.16A cmt. 1 (“A lawyer’s obligations with respect to client ‘property’ are

distinct [from obligations with respect to a client’s files].”).

¶24 In keeping with the Colorado Rules of Professional Conduct’s distinction

between a lawyer’s papers and a client’s property, we conclude that a personal

5We recognize that “Formal Ethics Opinions are issued for advisory purposes only and are not in any way binding on the Colorado Supreme Court.” Formal Ethics Opinions, Colo. Bar Ass’n, https://www.cobar.org/ethicsopinions [https://perma.cc/UJ2S-CEED]. Still, these opinions are persuasive authority. See, e.g., In re Fisher,

(Colo. 2009) (citing a formal opinion from the Colorado Bar Association). 11 representative does not acquire a right to take possession of a decedent’s legal files

under section 15-12-709 except for “documents having intrinsic value or directly

affecting valuable rights, such as securities, negotiable instruments, deeds, and

wills.” Colo. RPC 1.16A cmt. 1. Those items are the client’s property. See

Restatement (Third) of the Law Governing Lawyers § 46 cmt. a (Am. Law Inst.

2000) (differentiating between client files and “writings that qualify as property . . .

because of their value, for example cash, negotiable instruments, stock certificates

and other writings constituting presumptive proof of title, and collectors’ items

such as literary manuscripts”). For the purposes of section 15-12-709, the rest of

the files are the lawyer’s property.6

¶25 Further, the personal representative does not take possession or control of

some intangible right to access the deceased client’s files. Rule 1.16(d) requires

lawyers to surrender certain papers to the client when the representation ends, but

that responsibility is an ethical duty owed to the client, not something the client

6 This case does not raise, nor do we mean to answer, the question of what documents in a client’s legal files, if any, a lawyer may withhold from a living client under Rule 1.16(d) at the termination of the relationship. Certain courts have evaluated that issue in terms of which documents are the property of the client and which belong to the lawyer. ABA Comm. on Ethics & Pro. Resp., Formal Op. 471, at 1 (2015). We agree with the American Bar Association that the question of who owns what is distinct from the scope of a lawyer’s professional duty to surrender papers to former clients. See id.

12 legally owns. See Own, Black’s Law Dictionary (11th ed. 2019) (“[T]o have legal

title to.”). Thus, a lawyer’s ethical duty to surrender papers to former clients does

not pass to the personal representative under the Probate Code’s definition of

“property.” See § 15-10-201(42) (“‘Property’ means both real and personal

property or any interest therein and anything that may be the subject of

ownership.”).

¶26 The division mistakenly relied on Felker to conclude that legal files are client

property. See Estate of Rabin, ¶ 17. In Felker, the grievance committee (through a

hearing board) had found that a lawyer’s failure to deliver files to a client was a

failure to deliver property under the then-controlling Code of Professional

Responsibility.

. This court, reviewing the board’s disciplinary

recommendation, applied the American Bar Association’s Standards for Imposing

Lawyer Sanctions to hold that the appropriate consequence for that violation was a

reprimand because the lawyer had been merely negligent. Felker, 770 P.2d at

406–07. Because the lawyer “admit[ted] all of the allegations,”

, this court

did not address whether the board had correctly interpreted the Code of

Professional Responsibility, and we certainly did not hold that, under Colorado

law, legal files are client property.

¶27 In sum, clients have no property right, tangible or intangible, to their full

legal files under section 15-12-709. Accordingly, the division erred in concluding

13 that this section granted Claudine the power to take possession or control of

Louis’s complete files upon his death.

C. Disclosure of a Deceased Client’s Legal Files

¶28 Although Freirich had no duty under section 15-12-709 to provide Claudine

with all of Louis’s legal files, Claudine still contends that Freirich should have

disclosed them in response to her subpoena because the estate steps into Louis’s

shoes with respect to both the attorney-client privilege and the duty of

confidentiality under Rule 1.6. Freirich disagrees, and so do we. To demonstrate

why, we begin our analysis by describing how the privilege and the Rule overlap

and diverge.

¶29 Both the attorney-client privilege and Rule 1.6 ensure client-lawyer

confidentiality. Colo. RPC 1.6 cmt. 3 (“The principle of client-lawyer

confidentiality is given effect by related bodies of law: the attorney-client privilege,

the work-product doctrine and the rule of confidentiality established in

professional ethics.”). Their protections each survive a client’s death. Wesp v.

Everson,

(Colo. 2001) (“[T]he attorney-client privilege generally

survives the death of the client . . . .”); Colo. RPC 1.9(c) (“A lawyer who has

formerly represented a client in a matter . . . shall not thereafter . . . reveal

information relating to the representation except as these Rules would permit or

require . . . .”); Colo. Bar Ass’n Ethics Comm., Formal Op. 132, at 1 (2017) (“A

14 lawyer’s duty of confidentiality continues after the death of a client.”). Yet the

doctrines apply differently to safeguard a deceased client’s legal files.

¶30 The attorney-client privilege protects communications between a client and

an attorney for the purpose of obtaining legal advice, whether that advice pertains

to litigation, a transaction, or any other legal service. § 13-90-107(1)(b), C.R.S.

(2020); Gordon v. Boyles,

(Colo. 2000) (“The attorney-client

privilege extends only to matters communicated by or to the client in the course of

[legal representation] . . . . [I]t does not protect any underlying and otherwise

unprivileged facts . . . .”). It yields when the client has expressly or impliedly

waived it or an exception applies. Wesp,

. The privilege prevents

attorneys from “be[ing] examined without the consent of [their] client[s].”

§ 13-90-107(1)(b).

¶31 The duty of confidentiality is broader than the attorney-client privilege and

prohibits disclosure of any “information relating to the representation of a client”

unless the client consents or an exception applies. Colo. RPC 1.6(a), (b). It applies

“not only to matters communicated in confidence by the client but also to all

information relating to the representation, whatever its source,” Colo. RPC 1.6 cmt.

3, both inside and outside of judicial proceedings, see Colo. RPC 1.6 cmt. 15; Colo.

RPC 1.6 cmt. 3. Inside a proceeding, however, the duty of confidentiality yields to

“court order[s],” Colo. RPC 1.6(b)(8), including subpoenas, Colo. RPC 1.6 cmt. 15.

15 But, even in the face of a court order, Rule 1.6 permits lawyers to reveal

information related to a representation only “to the extent the lawyer reasonably

believes necessary.” Colo. RPC 1.6(b). Thus, the duty obligates lawyers to “assert

on behalf of the client all nonfrivolous claims that the [subpoena] is not authorized

by other law or that the information sought is protected against disclosure by the

attorney client privilege or other applicable law.” Colo. RPC 1.6 cmt. 15.

¶32 Here, none of the exceptions to the attorney-client privilege or the duty of

confidentiality are relevant except consent. So, when Fischer originally requested

all of Louis’s files from Freirich, the duty of confidentiality applied, unless Louis

waived it, because Fischer was asking for “information relating to the

representation of a client.” Colo. RPC 1.6(a). And when Claudine subpoenaed

Freirich, the duty, if it wasn’t waived, compelled him to assert any non-frivolous

claims of attorney-client privilege. See Colo. RPC 1.6 cmt. 15. Finally, the attorney-

client privilege shielded (from the subpoena) all confidential communications in

the files between Louis and Freirich for the purpose of obtaining legal advice

unless Louis waived the privilege or Claudine became the privilege holder. See

§ 13-90-107(1)(b).

¶33 With this general framework in mind, we turn to Claudine’s specific

assertions regarding the privilege and the duty.

16 1. Attorney-Client Privilege

¶34 Clients can, of course, expressly waive the attorney-client privilege in their

wills or anywhere else, but Louis did not do that. Instead, Claudine argues, by

virtue of the responsibilities attendant to her status as personal representative, she

became the attorney-client-privilege holder after Louis’s death. In fact, she

contends that this court concluded as much in People v. Palomo,

(Colo. 2001), and Friedman,

. So, according to Claudine, Freirich

could have provided her with Louis’s files without violating the privilege.

¶35 Contrary to Claudine’s assertion, however, this court has never addressed

who, if anyone, holds the attorney-client privilege for a client after death. Neither

Palomo nor Friedman even involved the attorney-client privilege: Palomo held that

a defendant couldn’t assert the physician-patient privilege on behalf of a murder

victim,

, while Friedman addressed whether a personal representative

could be held liable for tortious interference with the decedent’s contract, 846 P.2d

at 171–72.7

7Although Friedman states that “a personal representative succeeds to the rights and obligations of the Estate’s decedent, effectively ‘stepping into the shoes’ of the decedent,” that language is a quotation from the underlying district court’s order, which this court included in its factual summary.

. It did not originate in this court and does not reflect this court’s jurisprudence on the attorney-client privilege.

17 ¶36 More importantly, Claudine’s position runs counter to this court’s broader

articulation of the attorney-client privilege. “[T]he attorney-client privilege is

personal with the client,” so “the privilege may be waived only by the client.”

People v. Madera,

(Colo. 2005) (quoting Losavio v. Dist. Ct.,

(Colo. 1975)). Designating the personal representative as the

privilege holder would also undercut our holding in Wesp (that the privilege

survives a client’s death) by expressly permitting the personal representative to

access a deceased client’s privileged communications and to reveal them to third

parties.

¶37 The purpose underlying the attorney-client privilege—to encourage clients

to confide in their attorneys—also cautions against such an approach. “Open and

honest communication between attorney and client . . . furthers the attorney’s

ability to serve [the] client’s interests,” and, “[a]bsent assurances that

communications will remain confidential, clients may be reluctant or unwilling to

seek legal advice or to confide fully in their attorney.” Wesp,

.

“Posthumous disclosure of [confidential] communications may be as feared as

disclosure during the client’s lifetime.”

at 200 (quoting Swidler & Berlin v.

United States,

(1998)). Since clients may share information with

their attorney that they wouldn’t with their personal representative, retaining the

deceased client as the privilege holder encourages frank communications between

18 client and attorney during the client’s life. See Swidler & Berlin,

(“Knowing that communications will remain confidential even after death

encourages the client to communicate fully and frankly with counsel.”).

¶38 Claudine doesn’t dispute that clients may share information with their

attorneys that they wouldn’t want disclosed to their personal representatives. Yet

she contends that an attorney can simply warn a client that the personal

representative will have access to privileged material after the client’s death, and

clients who don’t want the personal representative to have access to certain

materials should state as much in their wills. But informing clients that their

communications could one day be disclosed to the client’s personal representative

might render any number of sensitive topics off limits, particularly where, as here,

the personal representative is a family member of the decedent and a devisee

under the will. See

(“Clients may be concerned about reputation, civil liability,

or possible harm to friends or family.”).

¶39 And we decline to place on clients a duty to protect their confidential

communications from later disclosure. The privilege “ordinarily protect[s]”

confidential attorney-client communications. Wesp,

. It would turn

the privilege on its head to require that a client affirmatively designate a

confidential communication as protected from later disclosure.

19 ¶40 Thus, in light of Wesp and the policies that underlie the attorney-client

privilege, we conclude that a client remains the attorney-client-privilege holder

even after death. But that result doesn’t render all confidential communications

between the attorney and a deceased client privileged forevermore. When there

has been no explicit waiver, a client’s actions before death can impliedly waive the

privilege.

¶41 We analyze the possibility of implied waiver in light of the role of the

personal representative under Colorado law. A personal representative

undertakes certain statutory duties with respect to estate administration. E.g.,

§ 15-12-703(1), C.R.S. (2020) (“A personal representative has a duty to settle and

distribute the estate of the decedent . . . .”); § 15-12-703(4) (“[A] personal

representative . . . has the same standing to sue and be sued in the courts of this

state and the courts of any other jurisdiction as his decedent had immediately prior

to death.”). A decedent nominates a personal representative precisely because the

decedent wants that individual to administer the decedent’s estate.

¶42 To effectively carry out those duties (as well as any other duties specified in

the will), a personal representative may need access to material otherwise

protected by the attorney-client privilege. Thus, by nominating a personal

representative, a client impliedly waives any claim of attorney-client privilege

with respect to communications necessary for estate administration, unless the

20 client expressly manifested the intent to maintain the privilege. See Wesp,

(“To prove an implied waiver, there must be evidence showing that the

privilege holder, ‘by words or conduct, has impliedly forsaken his claim of

confidentiality with respect to the communication in question.’” (quoting Miller v.

Dist. Ct.,

, 838 (Colo. 1987))). A decedent’s former attorney may

therefore provide a personal representative with privileged information necessary

for the personal representative to settle the estate.8

¶43 Accordingly, the division erred in concluding that Claudine, as the personal

representative, became the attorney-client-privilege holder after Louis’s death.

But Louis did impliedly waive the privilege with respect to communications

necessary to administer his estate by appointing her as his personal representative.

The attorney-client privilege couldn’t shield any otherwise privileged

8 “[T]he burden of establishing a waiver is on the party seeking to overcome the privilege.” Miller, 737 P.2d at 838. So a personal representative has the burden of proving that privileged material is necessary for estate administration. Evaluating such an assertion by the personal representative might require the court to conduct an in camera review of the relevant materials. See Madera,

. Although Claudine argues that personal representatives won’t know what to ask for, claims against the estate should shed light. And such claims must be made within a short statutory window. See § 15-12-803, C.R.S. (2020). Moreover, a personal representative need not wait for a claim against the estate before asking the decedent’s lawyer for documents the personal representative perceives to be necessary to administer the estate. Any resulting disputes may be resolved by the probate court on an ad hoc basis. 21 communications necessary to settle Suyue’s claim, although we recognize that

Freirich already provided Claudine with the file regarding the promissory notes.

2. The Duty of Confidentiality

¶44 Like the attorney-client privilege, a lawyer’s duty of confidentiality is not

absolute. It too can be waived. Unable to point to an explicit waiver, Claudine

argues that Louis impliedly authorized disclosure of his files to her by naming her

as the personal representative.

¶45 “[A] lawyer is impliedly authorized to make disclosures about a client when

appropriate in carrying out the representation.” Colo. RPC 1.6 cmt. 5. Therefore,

release is appropriate if “the attorney has reasonable grounds for concluding that

release of the information is impliedly authorized in furthering the former client’s

interests in settling [the] estate.” D.C. Bar, Ethics Op. 324, at 2 (2004). So a

decedent’s former attorney may provide the personal representative with

confidential information necessary to settle the estate unless the decedent has

expressly indicated otherwise. But the attorney cannot provide a decedent’s

complete legal files to the personal representative unless the decedent gave

informed consent for such broad disclosure in the will or elsewhere.

¶46 To hold otherwise would drastically undermine a lawyer’s duty of

confidentiality to a deceased client. It would grant the personal representative

authority to request, from every one of a decedent’s former attorneys, the

22 decedent’s entire legal history, regardless of subject matter and the needs of the

estate.

¶47 There is no evidence that all of Louis’s legal files were necessary to

administer the estate. Thus, Freirich had a professional duty of confidentiality

under Rule 1.6 to withhold all unnecessary information related to his

representation of Louis. And when Claudine subpoenaed files that she did not

need for estate administration, the duty of confidentiality obligated Freirich to

make all non-frivolous objections (including the assertion of attorney-client

privilege for any confidential communications made for the purpose of obtaining

legal advice).

III. Conclusion

¶48 The division erred by reversing the district court’s order quashing the

subpoena. Accordingly, we reverse that portion of the court of appeals’ judgment

and remand this case for further proceedings consistent with this opinion.

23