Thursday, November 29, 2012

The 5 Most Dangerous Rules of Professional Conduct

For Colorado lawyers needing ethics credits before year-end, on 18 December I will be teaching a CLE for NBI entitled The 5 Most Dangerous Rules of Professional ConductIt's a concept and program I have been thinking about for a few years.  

For those not needing credit or unable to attend you can read the details and order the program here.  I'll also be blogging some of the ideas from this program into the blog in the coming months.

To all, survive the holidays!

Sunday, October 7, 2012

Lessons From the Cockpit

Lessons from the Cockpit

I flew to Lincoln last Friday to visit my daughter Tammy and take in the Big 10 opener between the Huskers and Badgers.  It was a thrilling game – made more so by Nebraska depositing the pigskin on the turf on 2 of its first five plays from scrimmage – and a great fall weekend overall.  Saturday morning we sampled scones from the Farmer’s Market at Lincoln’s historic Haymarket over coffee at The Mill.  Sunday we flew up to Barnstormers restaurant in Norfolk for lunch, and on the way back found the Camp Fontanelle corn maze.

 Tuesday morning as I was pre-flighting my plane for the return to Boulder and work, I wondered how many of the lessons and pithy proverbs I have learned as a pilot translate to legal ethics and the practice of law.  The legal profession is not without its own collection of colorful maxims.  I am particularly fond of the one attributed to Sol Wachtler, former chief judge of New York's court of appeals, that a prosecutor can get a grand jury to indict a ham sandwich.  I have no doubt of Sol’s wisdom, having witnessed some rather suspicious pork in my own hydrator on occasion.  (For lovers of legal etymology and phrase origins I recommend Law Talk: The Unknown Stories Behind Familiar Legal Expressions.)  

But compared with the piloting world, the legal lexicon is positively bereft of adages in the area of risk management.   Piloting literature is sprinkled with such gems as “There are old pilots and bold pilots, but no old bold pilots,” and a personal favorite, “’Tis better to be on ground wishing self in sky, than in sky wishing self on ground.  (For my flying friends Slipping the Surly Bonds: Great Quotations on Flight is a fabulous collection of such sayings.)  So, with three-plus hours in the sky to ruminate on the subject, I used the time, my knee-board, and the back of my KLNK airport information print-out to outline this blog: some piloting wisdom and proverbs I think have value for my legal brethren in managing professional risk. 
 

Don’t Do Nuttin’ Stupid

 




When I bought my current plane in 2000, the interior was upholstered in what I called Nouveau Navaho, and the placarding would have made an FAA ramp examiner LOL.  It did, however, have one of the best warning placards I have ever seen, posted directly below the directional gyro: “Don’t Do Nuttin’ Stupid.”  If Woody Allen is correct that 80% of life is just showing up, heeding this admonition ought to keep lawyers well below the disciplinary regulators’ radar.   Still, notwithstanding its commendable pith, it lacks a bit in specificity.

Eric’s Three Rules for Safe Flying

Offering more detailed guidance to lawyers are three basic rules for safe flying espoused by one of my favorite flight instructors, Eric Armstrong:
  1. Don’t crash
  2. Don’t do anything that calls attention to yourself, and
  3. The chicken wins

      Rule One: Don’t Crash


On one level, the translation of Eric’s first rule to lawyering is pretty basic: don’t violate a Rule of Professional Conduct and don’t commit malpractice, i.e., Don’t Do Nuttin’ Stupid.  Drilling down a bit further into some of the reasons pilots crash, reveals deeper lessons for lawyers in Rule One.
A significant cause of General Aviation (GA) fatalities is weather – particularly when a pilot trained and licensed only for flight under VFR (Visual Flight Rules) continues into the teeth of deteriorating conditions requiring an IFR (Instrument Flight Rules) rating and IFR-equipped aircraft.  Such folly frequently leads to what is known in aviation parlance as CFIT – Controlled Flight into Terrain, in which a pilot flies a perfectly good, fully-functioning aircraft in the Cumulus Granite because he can’t see and has lost situational awareness.  

This type of accident is often induced by “get-there-itis,” a frequently fatal condition in which the pilot feels compelled to reach a destination now, when waiting a day, or even a few hours, would have avoided the weather and fatality.  An essential part of primary flight training is learning to make a sound “Go /No Go Decision.”   It is a lesson that must be constantly practiced and perfected over one’s flying career.  If mastered, it may allow others to someday scatter the pilot’s ashes from the sky; if not, the pilot may end up doing the job himself.

Still, good and careful pilots can be surprised by rapidly changing conditions.  In such instances, remembering there are options – such as landing the plane and waiting out the adverse weather – can avert catastrophe.  The “live-saving (180 degree) turn” is another smart option to continuing flight into instrument conditions.

Another leading cause of GA fatalities is the existence of a skills gap.  That is, whether through lack of training, practice or innate inability, a dangerous or fatal gap exists between the skill set required to safely complete a flight and that possessed on a particular flight by the pilot.  The pilot may, at one time, have possessed the training and ability necessary to safely complete a flight, but on the occasion in question does not.  External factors, such as illness or stress, or innate character flaws such as fatalism or cockiness, can erode the safety margin between skills required and the skills needed for the particular flight, thus creating a skills gap even in a well-trained and currently proficient pilot.
What does all this have to do with safe lawyering?  Plenty.  Particularly in this economy where there is tremendous external pressure to originate clients, understanding one’s skills and limitations is critically important to one’s professional health and financial wellbeing.  Like the pilot who succumbs to get-there-itis, the ability to exercise professional judgment in making a Go /No Go Decision regarding whether to take or continue with a case is vital to professional survival.
In evaluating a case a lawyer must frequently perform that most difficult of maneuvers: detaching oneself from one’s wallet.  Is the case fundamentally sound?  Is the client emotionally stable? Is the lawyer being pressured to take on a case out of financial necessity or by external pressure from a client who, while eager for legal redress, is incapable of evaluating the potential legal storms which may lie ahead?
If a case is legally and factually sound, does the lawyer have the skill set necessary to take it on?  If not, can requisite skills be obtained through training or study?  Associating with counsel who has the necessary training and skill is always an option to avoid disaster.  You may recall that John Kennedy, Jr.’s flight instructor offered to fly with him on his fatal flight to Martha’s Vineyard, a flight into instrument conditions of haze and gathering darkness that John, despite some instrument training, was not competent or rated to make.  John declined, saying “he wanted to do it alone.”  The price of that hubris, or simple bad judgment, was not only his life, but also that of his wife, Carolyn, and sister-in-law, Lauren Bessette. 

     Fatal Distractions

Another consideration in making a prudent Go / No Go case decision is, even if the case is sound and the attorney has the proper training and skill to successfully prosecute it, can the client afford the lawyer’s efforts?  A popular flying aphorism goes “the three most worthless things in flying are altitude above you, runway behind you, and air in the fuel tanks.”  Translated for the practice of law, one might include “a retainer left in the client’s bank account.” 
Perfectly sound aircraft are regularly brought down by an otherwise harmless distraction which, because of lack of training or discipline, sinks the pilot’s skill level below that required for safe flight.  Colorado lawyers of a certain vintage will recall the fatal 1976 flight of Don R. Evans, a partner of the Denver firm Yegge, Hall and Evans.  Don, who had been attending his firm’s annual retreat in Steamboat Springs, departed Sunday in a Piper Aztec with his wife and four others to return to Denver.  According to the NTSB investigation report the weather was clear and visibility unlimited when the aft cargo door popped open during takeoff.  The attention of an experienced instrument-rated pilot, with 4,686 hours in his logbook, including 499 in the type of aircraft he was flying, was diverted by this distraction in to the point where he failed to maintain flying speed.  The Aztec stall-spun to the ground, slamming into two propane fuel storage tanks, incinerating all aboard.  An open cargo or passenger door makes a lot of noise, and is a bona fide distraction, but will not, by itself, bring down a Piper Aztec.  Basic primary flight training instructs that a pilot-in-command must ignore the distraction, fly the airplane, and land as soon as practicable to fix it (it is virtually impossible to close a door in flight).  Any deviation from this standard operating procedure can be fatal, as it was for Don Evans, his wife and colleagues. 
An attorney who discovers himself up to his neck in litigation for a client who is even more deeply underwater in his financial responsibilities to pay the legal freight faces a serious distraction.  A small legal practice with an all-consuming case in this posture poses a genuine risk of distraction to the point of disengagement (as opposed to withdrawal) by the lawyer-in-command which is dangerous to both himself and his client.  Insisting on a retainer adequate to complete the legal mission is not to be dismissed as greed; it is a reality check for the both lawyer and client.  Just as a pilot must never undertake flight with less fuel than necessary to complete it (plus the FAA-mandated safety reserve), if a client is unable or unwilling to provide a retainer adequate for his cause, the case should not undertaken or, subject to leave of the court, the lawyer should withdraw.
If the lawyer makes a poor Go / No Go decision, or if unforeseen headwinds or changed conditions arise, the lawyer must not succumb to get-there-itis.  Options, including associating with more experienced counsel and withdrawal from representation, are always available.  Circumstances can change without warning despite careful planning.  However, continuing legal flight into discovered adverse conditions is inexcusable.  Above all, the attorney should not allow inexperience, hubris, or other outside forces to erode the safety margin to the point where the attorney puts not only himself, but his client, in peril.

     Rule Two: Don’t  Call Attention to Yourself

Eric’s Second Rule was illustrated on a training flight we took to Platte Valley Airport one winter day.  It had snowed earlier in the week and little wispy fingers of snow lay across 18V’s runway.  I had been doing all the flying to that point, and thought it only fair to give Eric a chance to shoot a touch-and-go.  He took the controls, executed a textbook approach, and touched down lightly on the runway.  There things got interesting.  Instead of the anticipated spray of powdery snow we quickly discovered that what we had both thought were snowy wisps were, in fact, icy berms.  Bam!  We hit the first one. Bam!  The second.  Bam! Bam! Bam! all the way down the runway to a stop.  The plane was fine, but we weren’t sure we could achieve takeoff speed with those ice speed bumps strewn across the runway.  Regardless we were not of a mind to try.

The air was cold, and my Cessna Skylane is STOL (Short Takeoff or Landing) equipped, so we briefly contemplated, and quickly dismissed, using the ice-free taxiway as a runway.  Doing so would not have been illegal, or even unsafe.  It would, however, have violated Eric’s Second Rule: “Don’t Call Attention to Yourself.”  So we waited until the airport plow truck showed up and made quick work of the little ice berms to take off.
Eric’s Second Rule is easily ported to law practice risk management.  For example, nothing a lawyer can do will more quickly draw attention than overdrawing his trust account.  In Colorado, financial institutions are required to promptly report any instance of a dishonored instrument or insufficient funds to the Office of Attorney Regulation Counsel, “irrespective of any overdraft privileges that may attach to such account.”  The OARC moves at supersonic speed in response to any such incident report.
Overt conflicts of interest also call attention to oneself.  Concurrent representation of an entity and a constituent may avoid detection in business transaction, but side-switching or representation adverse to a former client in a litigation matter will quickly draw the attention of opposing counsel and usually shortly thereafter, the judge.
And can there be any more brazen violation of Eric’s Second Rule than disregarding  Colo. RPC 7.1 in advertising?  An obviously misleading misrepresentation – “Over 500 years of legal experience!” – ballyhooed in the local media will get other lawyers talking.  An unsubstantiatable comparison with another lawyer’s services will produce a grievance faster than you can say “RFI.”

     Rule Three: The Chicken Wins

In explaining Rule Three, Eric recounted a hellacious commuter flight into Jackson Hole during ski season:  50 knot crosswinds.  Visibilities and ceilings near minimums.  A jet had already slid off the runway.  In short, pretty typical conditions at KJAC in December.  The less experienced co-pilot on the two-man crew was apprehensive about continuing the approach, but to the more seasoned veteran in the left seat this was old hat, so down the glideslope they went.  The approach and landing were masterful, and legal, but as he greeted his white-faced, disembarking passengers, the old pro reconsidered the wisdom of his decision-making.  “A good pilot is compelled to always evaluate what's happened, so he can apply what he's learned.” Top Gun.  So is a good lawyer.
Rule Three readily translates to the practice of law.  Just as in flying, resource management is an essential skill.  A pilot-in-command is trained to use all his resources, including other flight crew members, to lessen workload and increase safety.  A seasoned and capable lawyer is well advised to listen to his junior associates when they appear apprehensive about the legal course the partner has charted.  Both Pilots and lawyers are frequently undone by past experiences in which the decision-making was poor, but the outcome successful.  A successful approach to minimums does not validate poor decision-making, nor bode success under similar conditions in the future.  Nor does having dodged a legal or ethical bullet in the past necessarily portend a similar outcome in a different case. 
“The Chicken Wins” means that, when faced with a close decision, the option which enhances safety – of the flight, the passengers, the client and her cause – should be chosen in breaking any tie.  If an associate is apprehensive about the legal approach, the old pro should listen. (The associate should also remain mindful that while acting in accordance with a supervising lawyer’s reasonable directions in resolving arguable questions of professional duty is immunized, blindly following the “old pro” down the glideslope below ethical minimums is not.  See Colo. RPC 5.2)
Having served for years on the Colorado Bar Association’s Ethics Calling Committee I have observed that most lawyers who call are not flying blind; they already know the right answer and are simply seeking a sounding board.  Listening to one’s “inner chicken” is, more often than not, wise practice. 
There are old lawyers, and bold lawyers, but there are damn few bold lawyers whose professional conduct has not been questioned or punished.
Don’t Do Nuttin’ Stupid.




Sunday, July 1, 2012

Stiffing Court Reporters and Experts Can Be Hazardous To Your Law License


It’s summer!  Time for some lighter, or at least shorter, ethics fare.  Today’s lesson: Failing to pay your court reporter or expert witness is unethical and can subject the miscreant to professional discipline.

No, you didn’t snooze through that legal profession class.  And don’t bother reaching for your RPC – you won’t find anything precisely on point in the Rules of Professional Conduct.  Rather this is one of those legal gems every Colorado attorney should know and take as gospel, because the Colorado Supreme Court does.

What?  You want authority?  Did I mention this is summer?  

Okay, how about People v. Stauffer, 745 P.2d 240 (Colo. 1987)?  There attorney John Stauffer arrived at the deposition of his physician expert claiming he had forgotten his checkbook.  Attorney Stauffer gave the good doctor a promissory note, which he proceeded not to pay.  The court held:

Your conduct in executing and failing to pay a promissory note to Dr. Swinehart after you had agreed to pay him a fee of $500 for expert testimony he supplied at your request in a personal injury action, violates DR 1‑ 102(A)(6) (conduct that adversely reflects on your fitness to practice law).

745 P.2d at 241.  

Three years later the court found that failing to pay one’s court reporter was equally contemptuous.  See People v. Goens, 803 P.2d 480, 482 (Colo. 1990).  See also People v. Nelson, 35 P.3d 641, 644 (Colo. O.P.D.J. 2001) (earlier letter of admonishment arose from failure to pay expert); People v. Jukola, 2001 WL 1725002 (Colo.O.P.D.J.) (approving conditional admission of misconduct and publicly censuring respondent for failing to pay a court reporter); People v. Serna, 2001 WL 1161325 (Colo.O.P.D.J.) (attorney negligently failed to pay court reporter charges within a reasonable time in violation of Colo. RPC 1.15(b)); People v. Galindo, 908 P.2d 77, 78 (Colo. 1995) (respondent suspended 30 days for failure to pay expert fees).  

With such a consistent record of professional disciplinary jurisprudence one would think Colorado attorney's would have learned by now that stiffing one's reporter or expert is hazardous to one's law license.  Yet the current (July 2012) edition of The Colorado Lawyer reports another cautionary tale of an attorney failing to pay an expert.  The attorney was required to attend Ethics School and pay all costs associated with a three-year diversion agreement.  Not exactly the best way to start one's summer.  41 The Colorado Lawyer at 140.

The rule usually cited in such cases is Colo. RPC 8.4(d) (“It is professional misconduct for a lawyer to: engage in conduct that is prejudicial to the administration of justice”), which makes sense.  The wheels of justice would grind even more slowly if court reporters and experts could not rely on an engagement by an attorney as a guaranty of payment.  The invocation of RPC 1.15(b) in People v. Serna appears to reflect that attorney Serna’s client advanced the funds to pay the court reporter, which Serna co-mingled and then negligently misappropriated.

Can an attorney contract around this potential professional blemish by requiring a court reporter or expert to look solely to the client for payment?  Perhaps, but what court reporter would take that deal?  While I have met several attorneys surprised to learn that the Colorado Rules of Professional Conduct place us in the roll of guarantor of court reporter’s and expert’s fees, I have yet to meet a court reporter who didn’t know that.  Counsel’s suggestion of a non-recourse engagement should be met by any reporter or expert with a hearty belly laugh followed by a curt “no,” which would be appropriately preceded with a reference to the Christian place of eternal damnation.  

No, the solution and better practice is to insist that your client advance adequate funds for such costs if there is any doubt as the client’s creditworthiness (and, of course, don’t then negligently misappropriate them as Cecilia Serna did).

Have a great summer.

Monday, May 28, 2012

Washington Weighs in on Metadata


The Washington State Bar Association recently issued its Informal Op. 2216 (2012), discussing ethical issues relating to metadata in electronic documents exchanged among counsel.  As the 15th state ethics body to do so, Washington is a little late to the party.  The New York State Bar issued its Opinion 749 in December 2001.  I’ve been lecturing and writing about legal ethics and metadata even longer.    See Luce, What’s the Matter with Metadata, 36 Colorado Lawyer 113 (Nov. 2007).  (For those who prefer an outline format, here’s a link to the 2011 edition of my Metadata Crib Notes.)

One might think that after 14 state and one ABA opinion, and countless articles on the subject, Washington would have little to add.  However, Opinion 2216 does make at least one thought-provoking contribution, opining that, while “ethical rules do not expressly prohibit [lawyers] from utilizing special forensic software to recover metadata that is not readily accessible or has otherwise been “scrubbed” from the document”:

Such efforts would, . . . , in the opinion of this committee, contravene the prohibition in RPC 4.4(a) against “us[ing] methods of obtaining evidence that violate the legal rights of [third persons]” and would constitute “conduct that is prejudicial to the administration of justice” in contravention of RPC 8.4(d). To the extent that efforts to mine metadata yield information that intrudes on the attorney-client relationship, such efforts would also violate the public policy of preserving confidentiality as the foundation of the attorney-client relationship.
The possibility that such “special forensic software to recover metadata” exists, or will exist in the future, is hardly beyond the pale.  In 2006 AT&T’s lawyers uploaded a brief from which they attempted to electronically expurgate certain portions.  Alas, the purportedly expurgated portions were readily viewable with certain standard Apple software.  See AT&T Leaks Sensitive Info In NSA Suit  (CNet May 26, 2006).  

However, most modern metadata scrubbers do a fine job eradicating, not merely lining-out, the standard metadata found in most documents attorneys might exchange, i.e., word-processing documents, e-mail messages and spreadsheets.  Invoking RPC 4.4(a) and 8.4(d) against a receiving attorney – especially in the same opinion that correctly recognizes that the sending attorney has a duty to employ standard metadata removal techniques – uses a questionably heavy bat to address a matter better governed protocols of professionalism.  It also muddies the waters in the era of electronic discovery, for as Opinion 2216 recognizes: “in the context of discovery production, where certain metadata may have evidentiary value, RPC 3.4(a) specifically prohibits a lawyer from “alter[ing], destroy[ing] or conceal[ing] a document or other material having potential evidentiary value[,]” or assisting another person in doing so.”

Documents produced to opposing counsel, by definition, are not privileged.  Attempting to reapply some level of privilege to deeper layers of electronic documents is an analytically dubious and erroneous as a matter of both interpretation of the Rules of Professional Conduct and policy.  Washington’s Opinion 2216 makes this wrong turn, as others have before it, apparently because it takes pity on the sending lawyer who, under the opinion’s hypothetical, took no steps to scrub comments from an agreement which includes “comments . . . about the terms of the agreement, as well as the factual and legal strengths and weaknesses of the client’s position.”

Let’s not mince words:  In 2012, an attorney who sends or uploads such a document without employing standard metadata scrubbing techniques commits malpractice and violates, at a minimum, RPC 1.1 (competence) and 1.6(a) (confidentiality).  As a matter of policy, the onus must be on the sending attorney to employ basic scrubbing procedures which are cheap and readily available.

A basic tenant of legal competence is a rudimentary understanding of the tools of the trade, especially where a shortcoming may have disastrous consequences for one’s client.  Attorneys who are unable or unwilling to learn computing basics, such as how to scrub a document of metadata before sending it to counsel for an adverse party, should exercise professional judgment by either delegating such tasks or staying away from computers.  When it comes to the simple task of metadata scrubbing, the time for coddling Luddite lawyers is long, long, past.

Sunday, May 6, 2012

The "Testamentary Exception" - Potential Ethical Quicksand


I recently had occasion to revisit the testamentary exception in Colorado and the sometimes subtle differences between the attorney-client privilege, waiver, exception, and the Colorado Rules of Professional Conduct regarding confidential information.

The circumstances were routine: years ago an attorney had drafted a will.  The testatrix was now deceased and a squabble had broken out among the heirs.  The heirs’ attorneys had agreed to conduct informal discovery regarding a pretermitted child and contacted the lawyer to ask that he provide access to his estate planning file.  They also asked him to consent to an informal interview regarding the circumstances surrounding the making and execution of the will, including the testatrix’s state of mind.  The lawyer’s file had years earlier been transferred to other counsel.  

Although I had not had given any thought to the testamentary exception since taking Gene Scoles’ Trust and Estates class at the University of Oregon nearly 30 years earlier, the analysis was straight forward:

It begins with an understanding of the attorney-client privilege.  In Colorado the privilege is statutory – one of a few exceptions to the general rule that everyone may be compelled to give evidence.  The privilege is held by the client, not by counsel; it is the client’s and the client’s alone to waive.  If called to testify the subpoenaed attorney’s duty is clear: invoke the privilege (assuming none of the litigants does) until ordered to testify by the court.

It is well settled that the privilege survives the death of the client.  This rule was not established, but driven home by Chief Justice Rehnquist’s opinion in Swidler & Berlin v. U.S., 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998).  That case, you may recall, arose out of the 1993 suicide of Vince Foster, a Deputy White House counsel in the early days of the Clinton White House, and a former partner of Hilary Clinton in the Rose Law Firm.  Swept up in what came to be known as the White House Travel Office scandal, days before his death Foster sought the counsel of Swidler & Berlin partner, James Hamilton, whom he sought to retrain to represent him in any congressional inquiry which might arise out of the travel office firings.   Nine days after meeting with Hamilton, Foster committed suicide.  Independent Counsel, Ken Starr, later subpoenaed notes taken by Hamilton regarding this conversation, which Hamilton had assured Foster would be treated as confidential.

With Justices O’Connor, Scalia and Thomas dissenting, Chief Justice Rehnquist’s majority observed that most commentators and courts have held that the attorney-client privilege survives the death of the client, and held that the same rule obtains under Fed. R. Evid. 501.  The court discussed the so-called, testamentary exception: 

Such testamentary exception cases consistently presume the privilege survives . . .  They view testamentary disclosure of communications as an exception to the privilege: “[T]he general rule with respect to confidential communications … is that such communications are privileged during the testator’s lifetime and, also, after the testator’s death unless sought to be disclosed in litigation between the testator’s heirs.” [United States v. Osborn, 561 F.2d 1334 (CA9 1977)] at 1340. The rationale for such disclosure is that it furthers the client’s intent. Id., at 1340, n. 11.

The Court further reflected that:

About half the States have codified the testamentary exception by providing that a personal representative of the deceased can waive the privilege when heirs or devisees claim through the deceased client (as opposed to parties claiming against the estate, for whom the privilege is not waived). See, e.g., Ala. Rule Evid. 502 (1996); Ark. Code Ann. §16—41—101, Rule 502 (Supp. 1997); Neb. Rev. Stat. §27 503, Rule 503 (1995). These statutes do not address expressly the continuation of the privilege outside the context of testamentary disputes, although many allow the attorney to assert the privilege on behalf of the client apparently without temporal limit. See, e.g., Ark. Code Ann. §16—41—101, Rule 502(c) (Supp. 1997). They thus do not refute or affirm the general presumption in the case law that the privilege survives.

In Colorado, the leading case on the testamentary exception is Wesp v. Everson, 33 P.3d 191, 200 (Colo. 2001).  Like Swidler & Berlin, Wesp arose from a suicide shrouded in scandal:

Plaintiff Heather Wesp . . . sought damages in tort against her mother and step-father, Cheryl and Frank Brewer, based on allegations that Frank Brewer had sexually abused her. Criminal charges were also filed based on the same allegations. After writing suicide letters to family and friends, both Brewers committed suicide.

Citing Swidler & Berlin with approval, the Colorado Supreme Court first confirmed that privileged communications between Frank Brewer and his attorneys remain privileged after death.  The court then turned to the question of whether the testamentary exception to the privilege applied:

The testamentary exception permits an attorney to reveal certain types of communications in special circumstances. Specifically, the attorney who drafted the will of a deceased client may disclose attorney-client communications concerning the will and transactions leading to its execution in a suit between the testator’s heirs, devisees, or other parties who claim by succession from the testator. McCormick, supra, § 94; Wigmore, supra, § 2314; 81 Am. Jur. 2d, Witnesses § 389 (2000). The rationale for this exception is that it furthers the client’s testamentary intent. Swidler, 524 U.S. at 405 (citing Glover v. Patten, 165 U.S. 394, 407-408 (1897)); Wigmore, supra, § 2314.

Colorado recognizes the testamentary exception. See Denver Nat’l Bank v. McLagan, 133 Colo. 487, 491, 298 P.2d 386, 388 (1956); In re Estate of Shapter, 35 Colo. 578, 587, 85 P. 688, 691 (1905).

(Emphasis added.)  The court held, however, that although Colorado recognizes the testamentary exception, the exception did not apply in the case before it.

With regard to the oft-proffered rationale that the testamentary exception “furthers the client’s testamentary intent,” in reality many, if not most, clients would be horror-stricken if they knew their confidential consultations with counsel during the making of their will could be aired in open court after their demise.  Like so many rules based on “testamentary intent,” the rationale for the testamentary exception is a legal fiction, and has not been adopted by every state.  More significant to Colorado attorneys, the testamentary exception has not been adopted by the Colorado legislature – it is nowhere to be found in the Colo. Rev. Stat. § 13-90-107(1)(b), the codification of the attorney-client privilege which, in Colorado, is purely a creature of statute.  As such, a Colorado attorney confronted with a request has one, absolutely clear duty: assert the privilege until ordered to do otherwise by a competent tribunal.

This duty is buttressed by the Colo. RPC 1.6(a), which compels an attorney to “not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).”  (Emphasis added.)  Rule 1.6(a) is, at once, the most important rule in the ethical canons, and the least understood.  It is substantially broader than the attorney-client privilege, which is limited in scope to confidential communications.  Like the attorney-client privilege, the duty to preserve client confidences under Rule 1.6(a) survives the client’s death.
It is, of course, possible for an attorney to reasonably believe that a particular client has “impliedly authorized” posthumous disclosure to “further the client’s testamentary intent,” an express exclusion from Rule 1.6(a).  The better practice, however, is to discuss with, and seek the client’s informed consent, to make any such disclosures at the time a will is made.  The client’s informed consent —which should properly be conditioned on the need for such disclosure — would be sufficient to both satisfy Rule 1.6(a) and waive the statutory privilege.  Absent such consent, however, neither the “impliedly authorized” exclusion of Rule 1.6(a), nor any of the express exceptions in Rule 1.6(b), authorize an attorney to waive the statutory attorney-client privilege.

There is disagreement as to whether the attorney-client privilege devolves to the testatrix’s estate, such that it can be waived by a personal representative.  For example, there is authority in Massachusetts that a personal representative appointed by the probate court may waive the privilege.  See generally, Geller & Weisberg, Death and Confidentiality.  See also  Swidler & Berlin (noting that about half the states have codified the testamentary exception).  

Other states, such as Hawaii, have held that even if a personal representative has legal authority to waive the attorney-client privilege, the duty of confidentiality under Rule 1.6 is broader and prohibits disclosure unless the attorney reasonably concludes that client would have authorized the consent.   See Hawaii Formal Op. 38 (1999; updated 2015).  A similar conclusion was reached by the D.C. Bar in its Opinion324 (2004).  Iowa takes the position that an attorney should disclose written and verbal communications regarding a deceased client’s will only upon court order.  See Iowa Eth. Op. 98-11 (1998); Iowa Eth. Op.91-25 (1991).  Accord Phil. Bar Op. 91-4 (March 1994) (leaving open the question of “whether a court of competent jurisdiction may order [an attorney] to produce the earlier Will, or whether applicable substantive law would allow the personal representative to waive the attorney client privilege”).  

More recently, the Eighth Circuit held that, under federal law, a “personal representative of a deceased client generally may waive the client’s attorney-client privilege, however, only when the waiver is in the interest of the client’s estate and would not damage the client’s reputation.”  United States v. Yielding, No. 10-1117, 2011 WL 4578434 (8th Cir. Oct. 5, 2011).  See generally Commentary on Model Rule of Professional Conduct 1.6 by the American College of Trust and Estate Counsel (ACTEC) (collecting cases and ethics opinions).  

Where does all this leave a Colorado attorney for a deceased client?  Currently, in legal and ethical quicksand.  Colorado’s statutory attorney-client privilege contains no exclusion or exception for the testamentary privilege, although the Colorado Supreme Court has recognized one.  Thus, unless the client gives informed consent while alive — which would both waive the privilege and provide an exclusion from Rule 1.6(a) — a Colorado attorney is bound to assert the privilege until ordered by a court to do otherwise.  Even assuming a personal representative in Colorado may inherit the privilege for purposes of asserting or waiving it, Rule 1.6(a) may prohibit an attorney from disclosing any information relating to the making of a will, absent a court order.  The bottom line is that, although Colorado recognizes the testamentary exception, it is not self-executing – disclosure may only be made when ordered by a court.

In the case of the attorney whose inquiry started my review of the testamentary privilege, the attorneys for the dueling heirs sought and obtained an order from the court directing attorneys who had provided estate planning advice to the decedent to make their files available, and authorizing them to disclose otherwise privileged communications made in connection with the creation or execution of the will.  Where the client has not given clear direction during her life, this is an expedient solution and, absent a change in Colorado law, the only safe harbor for a Colorado attorney confronted with such a request.  It keeps the testifying attorney out of the ethical quicksand, assures a level playing field is maintained among the will contestants, and does not usurp the roll of the court which alone is empowered to rule on matters of privilege.