When is it reasonably necessary to have a third-party present during attorney-client communications? The Colorado Supreme Court weighs in.

When is it reasonably necessary to have a third-party present during attorney-client communications? A new Colorado Supreme Court decision further defined the attorney-client privilege in In re Fox v. Alfini, 432 P.3d 596 (Colo. 2018). The Colorado Supreme Court held that the presence of a third party during an attorney-client communication will destroy the attorney-client privilege unless the third party’s presence was reasonably necessary to the communication. ¶ 29.

Ms. Fox was a 36-year old woman who experienced a stroke after visiting a chiropractor’s office. Thereafter, Ms. Fox and her parents sought out and obtained legal advice regarding a case against the chiropractic’s office. The initial consultation was recorded with the attorney, Ms. Fox, and her parents present. During a deposition in the legal malpractice case, the defendants discovered the initial attorney-client consultation between was audio recorded.

The defendants requested disclosure of the recording arguing the presence of Ms. Fox’s parents destroyed the attorney-client privilege of confidential communications. Ms. Fox’s attorney argued the presence of Ms. Fox’s parents was necessary to assist Ms. Fox in understanding the complex legal issues she was discussing with the attorney and to assist Ms. Fox in remembering and making well-reasoned decisions regarding her legal rights and remedies.

The district court ruled Ms. Fox did not have a diminished capacity at the time she met with the attorney such that the presence of her parents during the consultation was necessary. Thus, the district court held the attorney-client privilege did not protect the audio recording of the initial consultation.

The Colorado Supreme Court upheld the trial court’s decision citing that the trial court did not abuse its discretion in ordering the audio recording be disclosed. In support of its decision, the Colorado Supreme Court held a party’s presence is reasonably necessary when the party’s presence is necessary to facilitate an attorney-client communication or make the conference possible, such as communicating about a traumatic event or facilitating communication in a different language. ¶¶ 21-27.

The attorney-client privilege is a privilege that protects communications between the attorney and client by keeping such communication confidential. However, there are exceptions to the when the privilege applies. One exception is that the attorney-client privilege is waived when a third party is present during the communication. The court’s decision in Fox provides clarification on when a third-party is reasonably necessary to facilitate communication between a client and attorney such that the attorney-client privilege would remain intact.

Justice Hood specially concurred stating another privilege, the work-product privilege, would be applicable to protect the audio recording from disclosure. ¶ 46. The work-product privilege protects tangible things prepared in anticipation of litigation by or for another party and are discoverable only upon a showing the party seeking the information has a substantial need for the materials that they are unable to obtain otherwise without undue hardship. ¶ 42. Due to the particular rulings and nature of the Fox decision, the work-product privilege did not apply in this case, but may be helpful in other situations with similar legal issues.

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