When a third party is present in a meeting between a lawyer and a client in Colorado, that meeting isn’t protected by attorney-client privilege unless the third party is necessary to facilitate that meeting. At issue before the Colorado Supreme Court was whether the third party’s necessity to the meeting can be judged by the attorney, or if it must be based on an objective standard.
In a 4-3 decision published Dec. 3, the state Supreme Court held that a personal injury plaintiff in her thirties, despite having recently suffered a stroke, didn’t need to have her parents present for a meeting with her lawyer. As a result, the court upheld a district judge’s order compelling the plaintiff to produce the lawyer’s recording of that meeting.
The majority clarified that its opinion in In re Fox v. Alfini was limited to the case before it, noting that it should not “be read to discourage [third-party] assistance when it is necessary.”
Justice Richard Gabriel wrote for the majority while Justice Carlos Samour issued a dissent joined by Chief Justice Nathan Coats and Justice Brian Boatright. Justice William Hood agreed with the majority, albeit “reluctantly,” worrying that the majority opinion could have a “chilling effect” on attorneys who would otherwise choose to involve third parties in client communications for legitimate reasons.