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In re Rademacher

Supreme Court of Colorado, En Banc

January 13, 2020

In Re Carol Rademacher, Plaintiff
v.
Ira E. Greschler. Defendant

          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 ...


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