August 13, 2019 Top Story

Presence of Client’s Parents Waived Privilege Claim

Decision turned on whether third parties’ presence was objectively necessary

By C. Thea Pitzen

A potential client in her early thirties comes in with her parents for an initial consultation. She recently had a stroke and wants to discuss a possible medical malpractice action. You meet with the client and her parents and record part of the conversation. Will that recording be discoverable in the ensuing litigation? According to the Colorado Supreme Court, the answer may be “yes.”

In a case involving these facts, the trial court concluded the plaintiff’s capacity was not diminished such that her parents’ presence was necessary to assist in her legal representation. The court ruled, therefore, that the attorney-client privilege did not protect the lawyer’s recording and granted a motion to compel its production. In a motion for reconsideration, the plaintiff attempted to raise several new arguments—including that the recording was protected under the work-product doctrine. The trial court declined to consider the new arguments and denied the motion.

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