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In re Estate of Rabin

Court of Appeals of Colorado, Fourth Division

December 27, 2018

In re the Estate of Louis Rabin, deceased.
v.
Mark A. Freirich, Appellee. Claudine Rabin, Appellant,

          Routt County District Court No. 17PR30024 Honorable Michael A. O'Hara, Judge

          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

          Lewis Brisbois Bisgaard & Smith LLP, Nancy L. Cohen, Nicole Marie Black, Denver, Colorado, for Appellee

          OPINION

          TOW JUDGE

          ¶ 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), [1] 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 his death.

         ¶ 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.

         I. Background

         ¶ 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.[2] However, he had retained more than forty other files created during his representation of Louis.

         ¶ 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 Claudine.

         ¶ 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 estate."

         ¶ 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 sanctions.

         II. Attorney Files

         ¶ 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 ...


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