Original Proceeding Pursuant to C.A.R. 21 Boulder County
District Court Case No. 17CV30454 Honorable Thomas F.
Mulvahill, Judge.
Attorneys for Plaintiff: Purvis Gray Thomson, LLP John A.
Purvis Boulder, Colorado Chalat Hatten & Banker, PC James
H. Chalat Denver, Colorado
Attorneys for Defendant: Childs McCune LLC Daniel R. McCune
Margrit Lent Parker Denver, Colorado
OPINION
GABRIEL, JUSTICE.
¶1
In this proceeding brought pursuant to C.A.R. 21, plaintiff
Carol Rademacher challenges the district court's ruling
that she impliedly waived her attorney-client privilege by
filing a legal malpractice complaint close to the expiration
of the two-year statute of limitations and by then contesting
defendant Ira Greschler's statute of limitations defense.
¶2
We conclude that on the facts presented, Rademacher did not
assert a claim or defense that either focused or depended on
advice given by her counsel or that placed any privileged
communications at issue. Accordingly, we further conclude
that Rademacher did not impliedly waive her attorney-client
privilege in this case.
¶3
We therefore make our rule to show cause absolute.
I.
Facts and Procedural Background
¶4
This case has a lengthy procedural history, including two
appeals to the court of appeals, but only some of that
history is pertinent here.
¶5
Greschler served as Rademacher's attorney on various
matters for more than two decades. One of the matters in
which Greschler represented Rademacher involved the
settlement of potential civil claims that Rademacher had
brought against a man named John Becker and his wife.
¶6
As pertinent here, for approximately ten years, Rademacher
and Becker were involved in an extramarital relationship.
Becker's wife ultimately confronted and assaulted
Rademacher, after which Rademacher contacted the police. As a
result, the police charged Ms. Becker with assault, and
Rademacher submitted a victim impact statement, asking that
Ms. Becker be prosecuted to the full extent of the law.
¶7
Subsequently, the Beckers and Rademacher entered into a
settlement agreement, under which Rademacher agreed not to
pursue any claims against the Beckers and to ask the Boulder
District Attorney's office to offer Ms. Becker a deferred
sentence. In exchange for these promises, Becker executed a
$300, 000 promissory note payable to Rademacher.
¶8
Pursuant to the agreement, Rademacher signed a letter to the
district attorney indicating her desire that Ms. Becker be
offered a deferred sentence, and Becker made several payments
on the note totaling $35, 000. Becker, however, subsequently
stopped making payments, and Rademacher, who was then still
represented by Greschler, sued to enforce the agreement.
¶9
A jury ultimately found for Rademacher, and Becker appealed.
On May 1, 2015, after Greschler had orally argued the case in
the court of appeals but before the division issued its
opinion, Rademacher's divorce attorney, Shawn Ettingoff,
sent Greschler a letter "to convey [Rademacher's]
dissatisfaction with [Greschler's] inadequate
representation" in the dispute with Becker. This
dissatisfaction principally concerned Greschler's report
that at the oral argument in the court of appeals, the
division, apparently to Greschler's surprise, had raised
significant public policy concerns regarding the validity and
enforceability of the above-described settlement agreement.
Much of Ettingoff's letter focused on how, in his view,
Greschler should not have been surprised by the
division's articulated public policy concerns and on how
ill-prepared Ettingoff felt Greschler was for oral argument.
The letter also noted that Greschler's conduct in
representing Rademacher "helped create and perpetuate a
situation that may very well lead to the reversal of the
judgment in [Rademacher's] favor." And the letter
set forth a ...