In re the Estate of Louis Rabin, deceased.
Mark A. Freirich, Appellee. Claudine Rabin, Appellant,
County District Court No. 17PR30024 Honorable Michael A.
Cantafio Law, P.C., Ralph A. Cantafio, Mark J. Fischer,
Steamboat Springs, Colorado; Legal Tree, LLC, Lisel A.T.
Petis, Steamboat Springs, Colorado, for Appellant
Brisbois Bisgaard & Smith LLP, Nancy L. Cohen, Nicole
Marie Black, Denver, Colorado, for Appellee
1 In this appeal, we are asked to reconcile two seemingly
inconsistent long-standing legal maxims: (1) that the
attorney-client privilege survives the death of the client
and (2) that a decedent's personal representative has a
right to take possession of all of the decedent's
property. Specifically, petitioner, Claudine Rabin
(Claudine),  as personal representative of the estate
of her late husband, Louis Rabin (Louis), asserts that she
has a right to possession of legal files in the possession of
respondent, Mark A. Freirich, who is Louis's former
attorney. Freirich counters that Claudine's request would
violate Louis's attorney-client privilege, which survives
2 We conclude that because the two maxims can coexist, they
are not in conflict. Therefore, the latter rule should have
been given effect in this case, and Claudine should have been
given the files. Accordingly, we reverse the order quashing
her subpoena for the files and the award of attorney fees,
but otherwise affirm.
3 Freirich represented Louis in over forty separate matters
over the course of many years. One such matter involved the
preparation of two promissory notes that became due upon
Louis's death and were payable to his former wife, Suyue
Rabin (Suyue). In a separate matter, Freirich notarized a
quitclaim deed granting ownership of a parcel of property to
Suyue and their daughter, Sulee Rabin (Sulee), while
reserving a life estate to Louis. Freirich did not assist
Louis in drafting his most recent will.
4 Upon Louis's death, and under the terms of his will,
Claudine was named his personal representative in the
administration of his estate. In probate proceedings,
Claudine issued a subpoena demanding Freirich produce the
"[e]ntire file of Louis Rabin." Freirich refused,
claiming the documents were confidential and privileged, and
filed a motion to quash the subpoena.
5 Soon after, Claudine's attorney clarified that he was
seeking information concerning the "background,
consideration or other matters concerning" the
promissory notes held by Suyue. When those files were not
provided, Claudine filed a motion to compel production of
"the full and complete file of the Deceased, Louis
Rabin," held by Freirich.
6 In a hearing before the trial court, Freirich represented
that he had turned over all documents concerning the
promissory notes held by Suyue. However, he had retained more
than forty other files created during his representation of
7 The trial court ruled in favor of Freirich, finding that
Louis's attorney-client privilege survived his death,
that neither the estate nor the personal representative was
the privilege holder, and that no exception existed to permit
Freirich to dispense with the privilege. The trial court also
awarded attorney fees to Freirich, finding that
Claudine's pursuit of the files was groundless.
8 After the trial court ruled on the motions, Claudine filed
a motion to reconsider, to which Freirich filed a response.
In addition, Suyue filed a petition for allowance of claim,
to which Claudine responded. Freirich, on his own behalf,
then filed a reply to Claudine's response. Asserting that
Freirich did not have standing to file the reply, Claudine
filed a motion to strike and requested sanctions under
C.R.C.P. 11 and C.R.C.P. 12(f).
9 Before the trial court ruled on the motion to reconsider or
the motion to strike, the estate settled the claims relating
to the promissory notes and quitclaim deed. This settlement
did not purport to settle any disputes between Freirich and
10 The trial court then denied the motion to reconsider and
denied the motion to strike and for sanctions. In addition,
the trial court found that the case would "soon be
closed," that there was no longer any controversy in the
matter, and that the "files were apparently no[t]
necessary for an evaluation of claims against the
11 Claudine now appeals both the order granting
Freirich's motion to quash and awarding attorney fees and
the order denying the motion to strike and the request for
12 Claudine argues that section 15-12-709, C.R.S. 2018,
grants her the right to take possession of all client files
relating to ...