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.
Kayla Fox, a middle school counselor in her early thirties, came down with a serious illness and eventually suffered a stroke after her appointment with a chiropractor. She and her parents met with personal injury attorney Jim Leventhal to discuss filing a medical malpractice lawsuit against the chiropractor, William Alfini, and the Brady Chiropractic Group that employs him. After Fox filed the lawsuit and discovery ensued, the defendants learned Fox’s parents sat in on the initial consultation and that Leventhal had recorded the meeting. The defendants then moved to have the plaintiffs produce the recording, claiming her parents’ presence destroyed the meeting’s attorney-client privilege.
Arguing against the motion to compel, Fox said her parents’ presence at the meeting was necessary because her stroke left her with “diminished mental capacity” at the time. The district court weighed Fox’s neurological evaluations and affidavits against what the defense supplied, which were Fox’s social media posts after the stroke in which she said she would make “a full recovery.” Mesa County District Court Judge Lance Timbreza decided Fox’s mental capacity wasn’t diminished to the point that her parents needed to be at the initial consultation, and therefore the recording wasn’t protected.
Fox appealed Timbreza’s decision, contending that a third party’s necessity should be based on whether the lawyer had a subjective reasonable belief that they needed to be there in order to facilitate the communication. The Supreme Court cited many instances of courts finding necessity based on an objective standard, however, such as one case where an elderly woman needed her daughter present in order to relate a traumatic event to her attorney. But the Supreme Court nor Fox could cite any cases in which “necessity was based solely on an attorney’s subjective view as to whether a third person’s presence was necessary to facilitate an attorney-client communication,” according to the opinion.
Ultimately, the Supreme Court upheld the district court’s finding that Fox’s parents weren’t “reasonably necessary” to the initial consultation. That Fox didn’t need their assistance due to any diminished mental capacity was “amply supported by the evidence in the record,” according to the majority. The record didn’t show that Leventhal made an effort prior to the meeting to determine whether his client had cognitive deficiencies that required her parents to sit in, the court noted.
In district court, Fox had also filed a motion for reconsideration introducing two new arguments for attorney-client privilege, one being that her parents were prospective clients and that they were her agents with common legal interests. The second argument was that the work-product doctrine required defendants to show why they needed the initial consultation recording. But the district court denied the motion, reasoning that Fox could have raised those arguments at the pleading or the hearing, and the Supreme Court didn’t see that as an abuse of discretion.
Leventhal declined to comment on the opinion citing the ongoing litigation, as did Todd Drake of Hershey Decker Drake, who is representing Alfini.
Attorneys who work with clients with brain injuries or a cognitive disabilities sometimes need a third party present to assist with communications. But it’s difficult for lawyers to judge the client’s competency in those cases, said Ben Lebsack, a plaintiff’s employment attorney who is a partner at Lowrey Parady in Denver. He and attorney David Mason co-authored an amicus brief for the Colorado Trial Lawyers Association, although Lebsack spoke to Law Week not on behalf of the CTLA.
Lebsack said it’s possible the opinion might have a chilling effect on attorneys who are deciding whether to involve third parties, but he noted the majority took pains to narrow its ruling. “The most important thing to recognize about [In re Fox v. Alfini] is that the court is saying this is a case-by-case situation.”
If anything, the decision cautions attorneys to be more mindful of whether a third party’s presence could make a communication discoverable. With courts using an objective standard to decide whether a third party’s presence destroys attorney-client privilege, “that requires attorneys to do a little more due diligence to make sure the third parties’ presence is necessary” and not just take the client’s word for it that they need to be there, Lebsack said.
Lebsack said Justice William Hood’s special concurrence raised an “interesting” point — that it’s an “open question as to whether the work product doctrine would apply” in a situation like Fox’s. While noting that Leventhal introduced the work product argument too late for the court to consider it, Hood said that “the substantial need hurdle can offer the Kayla Foxes of the world some protection.”
In his dissent, Justice Carlos Samour said the district court erred when it failed to hold an evidentiary hearing to have Fox’s competency argued, instead relying on the paper record to make a factual determination. “Respectfully, I cannot endorse this approach,” Samour wrote.
“In the end, while the majority concludes that there is ample evidence in the record to support the district court’s factual findings, it overlooks that there is equally ample evidence in the record to support contrary factual findings,” according to Samour. “Given the conflicts in the exhibits, the only way to properly settle the parties’ factual dispute was to hold an evidentiary hearing.”
— Doug Chartier