The United States Law Week

Attorney-Client Privilege Waived by Parents’ Presence

Dec. 4, 2018, 7:32 PM

A stroke victim must turn over a tape of her initial consultation with her attorney to the party she is suing, the Colorado Supreme Court said Dec. 3.

Kayla Fox didn’t show her parents were needed in the meeting, so their presence negated her attorney-client privilege, the opinion by Justice Richard L. Gabriel said.

Fox’s parents accompanied her to see attorney James Leventhal to discuss suing the chiropractor she blamed for her stroke. Fox said she needed her parents there because the stroke left her with reduced mental capacity.

Fox argued the determination of whether her parents were needed at the meeting should be based on whether Leventhal believed their presence would facilitate the consultation.

But the court applied an objective standard.

Because Fox posted how well she was doing on social media before she met with Leventhal, the court said her parents weren’t needed at the meeting. Though there are certainly circumstances where third-party presence won’t waive attorney-client privilege, this wasn’t one of them, it said.

Justice William W. Hood III concurred, but expressed concern the opinion will chill the legitimate use of third-parties at initial consultations.

Dissenting Justice Carlos A. Samour, joined by Chief Justice Nathan B. Coats and Justice Brian D. Boatright, argued the trial court should have held a hearing before ordering Fox to turn over the tape.

Leventhal & Puga PC represented Fox. Hershey Decker Drake represented the chiropractor.

The case is Fox v. Alfini, 2018 BL 444104, Colo., No. 18SA92, 12/3/18.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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