The Supreme Court of the State of Colorado (“Colorado Supreme Court”) held in its deeply-divided opinion filed on December 3, 2018: “the presence of a third party during an attorney-client communication will ordinarily destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies. Here, because the record supports the district court’s finding that [the plaintiff] had not shown that her parents’ presence was reasonably necessary to facilitate the communication with counsel, we perceive no abuse of discretion in that court’s ruling that the recording at issue was not protected by the attorney-client privilege.”
The Underlying Facts
The Colorado medical malpractice plaintiff was in her early thirties when she became seriously ill immediately after receiving chiropractic treatment from the defendant chiropractor. A massage therapist in the defendant’s office called the plaintiff’s mother, stated that the plaintiff had the flu, and told the plaintiff’s mother to come pick up her daughter. The plaintiff’s parents arrived shortly thereafter, realized that their daughter was gravely ill, and rushed her to the hospital where she received emergency care and treatment for what turned out to be a stroke.
The plaintiff’s Colorado medical malpractice lawyer recorded at least a portion of the initial consultation in order to make sure that he did not miss anything as he sought to learn the facts leading to the plaintiff’s stroke and the harm and damages that resulted from it. The plaintiff’s medical malpractice lawyer did not endeavour to determine before conferring with the plaintiff and her parents whether the plaintiff’s stroke caused any cognitive deficiencies such that her parents’ presence was necessary to facilitate the consultation.
The defendant moved to compel the production of the recording or, in the alternative, for the court’s in camera review of the recording to determine if any part of it was discoverable, arguing that the presence of third parties vitiated a claim of attorney-client privilege and, therefore, the recording was discoverable. The plaintiff opposed the motion, arguing that the plaintiff had diminished mental capacity as a result of her stroke and therefore the plaintiff’s parents’ presence was necessary to facilitate her communications with her Colorado medical malpractice lawyer and did not destroy the attorney-client privilege.
The district court concluded the plaintiff’s capacity was not diminished such that the presence of her parents was necessary to assist in the representation. The district court ruled that the attorney-client privilege did not protect the recording and granted defendant’s motion to compel the production of that recording. The plaintiff appealed.
The Colorado Supreme Court stated that the attorney-client privilege is codified in Colorado by statute and operates to protect communications between attorney and client relating to legal advice. Section 13-90-107(1)(b), C.R.S. (2018), provides, in pertinent part, “An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment . . . .” The claimant of the privilege has the burden of establishing it, and the burden of establishing a waiver is on the party seeking to overcome the claim of privilege.
However, the presence of a third party during attorney-client communications generally destroys any privilege that might otherwise attach because, if a client communication is made to an attorney in the presence of a third party, then the communication is ordinarily not considered confidential. Nonetheless, if the presence of a third person is necessary to make the conference possible, then that person’s presence may not destroy the attorney-client privilege. To preserve a claim of privilege in Colorado cases involving third-party involvement in attorney-client communications, the client must have an expectation of confidentiality in the communication and the third party’s presence must be necessary to facilitate that communication.
In the present case, the Colorado Superme Court stated it found no applicable cases in which necessity was based solely on an attorney’s subjective view as to whether a third person’s presence was necessary to facilitate an attorney-client communication. The Colordao Supreme Court therefore adopted an objective standard of necessity and concluded that the presence of a third party during an attorney-client communication will ordinarily destroy the privilege unless the third party’s presence was reasonably necessary to the consultation or another exception applies.
Three justices of the Colorado Supreme Court dissented to the majority opinion. In addition, a concurring opinion voiced concern about “the chilling effect the court’s opinion today might have on some attorneys or parties who legitimately perceive a need to have third parties present at an initial consultation …[and] the potential for adversaries to obtain the mental impressions of counsel, however incipient they may be, if a third party was present for the consultation … The work product doctrine strikes me as the most logical refuge for parties on facts like these. Unfortunately for [the plaintiff], invocation of that doctrine came too late.”
Source In Re Fox v, Alfini, 2018 CO 94.
If you or a family member may be the victim of medical negligence in Colorado or in another U.S. state, you should promptly consult with a medical malpractice attorney in Colordao or in your state who may investigate your medical negligence claim for you and represent you or your family member in a medical malpractice case, if appropriate.
Click here to visit our website to be connected with medical malpractice lawyers in your state, or call us toll-free in the United States at 800-295-3959.
Turn to us when you don’t know where to turn.