Wesp v. Everson
33 P.3d 191, 2001 Colo. LEXIS 878, 2001 Colo. J. C.A.R. 4869 (2001)
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Rule of Law:
The attorney-client privilege generally survives the client's death and is not waived by disclosing non-privileged communications; a 'manifest injustice' exception to the privilege is not recognized. Furthermore, a pretrial hearing applying the Williams test is typically required to determine if opposing counsel can be called as a trial witness.
Facts:
- Heather Wesp reported to the police that her step-father, Frank Brewer, had sexually abused her during her childhood.
- Anticipating criminal charges, Frank Brewer hired attorneys Paul Prendergast and Janelle Oswald to defend him.
- Paul Prendergast discussed potential plea bargains with the district attorney's office on Frank Brewer's behalf.
- Paul Prendergast met with both Frank and Cheryl Brewer (Frank’s wife) in a 'joint meeting' where he discussed the criminal charges, associated penalties, and a possible plea agreement with Frank.
- Heather Wesp brought civil claims seeking money damages against both Frank and Cheryl Brewer.
- Approximately one week after criminal charges were brought, Frank and Cheryl Brewer prepared holographic wills and wrote suicide letters.
- The suicide letters contained statements denying Frank Brewer's alleged actions, explaining their decisions to commit suicide, and relating information and advice that had been given to Frank Brewer by Prendergast at the 'joint meeting.'
- Frank and Cheryl Brewer subsequently committed suicide.
Procedural Posture:
- Heather Wesp brought civil claims seeking money damages against Frank and Cheryl Brewer in a trial court (district court).
- After Frank and Cheryl Brewer committed suicide, the personal representative of their estates was substituted as the defendant in the civil action.
- Attorneys Paul Prendergast and Janelle Oswald entered their appearance as counsel for the personal representative of the Brewers' estates in the civil case.
- Wesp sought to depose Prendergast and Oswald.
- The defendant (personal representative) filed a Motion for a Protective Order to quash the deposition, which the trial court denied.
- The trial court issued a series of rulings, holding that: (1) the attorney-client privilege was waived by the Brewers' suicide letters; (2) the privilege did not survive Frank Brewer's death; (3) the testamentary exception might apply; (4) the privilege should be pierced because its exclusion would work a “manifest injustice”; and (5) it would not hold a pretrial hearing about whether the defense attorneys could be called as witnesses at trial.
- A second trial court judge (after the first retired) partially qualified the ruling on privilege survival but ultimately concluded the privilege exclusion would work a “manifest injustice.”
- The trial court declined to conduct a pretrial hearing regarding the attorneys testifying, ruling that the analysis could be performed at trial, which forced Prendergast and Oswald to withdraw as trial counsel.
- The defendant (personal representative of the Brewers' estates) brought two original petitions to the Colorado Supreme Court, claiming the trial court exceeded its jurisdiction in making these rulings.
- The Colorado Supreme Court issued orders to show cause and joined both actions.
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Issue:
1. Does the disclosure of communications made in the presence of a third party, which were never privileged, waive attorney-client privilege for other, confidential communications? 2. Does the attorney-client privilege survive the death of the client? 3. Does the testamentary exception to the attorney-client privilege apply to tort claims against a deceased client's estate? 4. Can the attorney-client privilege be pierced to prevent a 'manifest injustice'? 5. Is a pretrial hearing necessary to determine whether opposing counsel may be called as a witness at trial?
Opinions:
Majority - Justice Bender
No, the disclosure of communications made in the presence of a third party, which were never confidential and thus never privileged, does not waive attorney-client privilege for other, confidential communications. The court reasoned that confidentiality is a core requirement for the privilege to attach, and communications made in the presence of a third party (Cheryl Brewer in the 'joint meeting') are not confidential. Since no privilege ever attached to these specific communications, they could not be waived, and their disclosure did not affect the privilege for other, truly confidential communications between Frank Brewer and his attorneys. Yes, the attorney-client privilege generally survives the death of the client. Citing Swidler & Berlin v. United States, the court emphasized that knowing communications remain confidential even after death encourages full and frank disclosure by the client, which is essential for effective legal advice and the administration of justice. Clients may fear posthumous disclosure due to concerns about reputation, civil liability, or harm to family. No, the testamentary exception to the attorney-client privilege does not apply to tort claims against a deceased client's estate. The court clarified that this exception is narrow, applying primarily to disputes among heirs or devisees concerning the validity or execution of a will, where the attorney drafted the will. Here, Prendergast and Oswald did not draft the Brewers' wills, the case is a tort action, not a will contest, and Wesp is a tort claimant, not claiming by succession from the testator. Applying the exception would also contradict the Brewers' stated intent in their suicide letters to have their personal representative fight Wesp's claims. No, the attorney-client privilege cannot be pierced to prevent a 'manifest injustice.' The court declined to create such an exception, noting a lack of legal precedent or legislative authority for it. The court reasoned that an unpredictable 'manifest injustice' standard would undermine the privilege's purpose by discouraging client candor and making the application of the privilege uncertain, thereby frustrating the orderly administration of justice. Yes, a pretrial hearing is necessary to determine whether opposing counsel may be called as a witness at trial. The court reiterated the Williams v. District Court test, which requires a party seeking to call opposing counsel to demonstrate on the record that: 1) the testimony will be adverse to the client; 2) the evidence is likely admissible; and 3) there is a compelling need that cannot be satisfied by other sources. The court emphasized that a pretrial determination is crucial to prevent the tactic of forcing opposing counsel to withdraw unnecessarily, which occurred in this case due to the vague offer of proof. Therefore, a pretrial hearing to apply the Williams test and render a decision is required in typical cases.
Analysis:
This case significantly clarifies the scope and endurance of the attorney-client privilege in Colorado, particularly regarding its survival post-mortem and the limited applicability of exceptions. By rejecting a 'manifest injustice' exception, the court strongly upholds the predictability and fundamental purpose of the privilege, ensuring clients can confide without fear. Furthermore, the ruling reinforces procedural safeguards against the tactical use of subpoenas to compel opposing counsel's testimony, requiring a robust pretrial showing to prevent unnecessary disruption of the attorney-client relationship and potential disqualification of counsel.
