Your Secret’s Safe with Your Estate Planning Attorney… Maybe [Colorado]

When a client’s intent is at issue in a will contest suit, who better to ascertain the client’s intentions than that of their estate planning attorney? However, due to client-attorney privilege, many confidential pieces of information must be included in that privilege, even after death. In  Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998), the Supreme Court stated that certain things cannot be forced from the attorney as it “may result in the posthumous exposure of detrimental information concerning a client’s reputation or impose possible harm to friends and family.”

Colorado allows the client-attorney privilege to extend past death, and thus the personal representative stands in for the descendant and therefore can waive the privilege. Colorado also recognizes the testamentary exception in which the attorney may, but does not have to, disclose privileged communications that would otherwise be protected if sought by the decedent’s heirs in a will contest suit.

The Colorado Bar Association Ethics Committee has also issued a formal ethics opinion that in the absence of the client or the client’s representative consent to disclose information, a court order may be required.

See Lauren A. Morris, Your Secret’s Safe with Your Estate Planning Attorney, or is it?, Lexology, August 15, 2018.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.) for bringing this article to my attention.