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Split Colorado Supreme Court says stroke victim's recording not protected by attorney-client privilege

By Karen Kidd | Dec 11, 2018

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DENVER (Legal Newsline) – A stroke victim must turn over to the chiropractic practice she is suing a recording of her initial consultation with her attorney following a sharply spit Colorado Supreme Court opinion that the tape is not protected by attorney-client privilege.  

Over the dissent of three justices, the state Supreme Court ruled Kayla Fox failed to convince it that the presence of her parents was necessary for the consultation and their presence negated usually presumed attorney-client privilege, according to the opinion issued Dec. 3.

"In reaching this conclusion, we are not unmindful of the necessity in some circumstances for clients or prospective clients to have third parties assist them during attorney-client consultations," Justice Richard L. Gabriel wrote in the court's majority opinion. 

"Nor should our ruling be read to discourage such assistance when it is necessary. We merely conclude that, on the facts of this case, the district court did not err when it found that Fox had not shown the requisite necessity to preserve her claim of privilege."


Colorado Supreme Court Justice Richard L. Gabriel   courts.state.co.us

In his special concurrence, Justice William W. Hood said he "reluctantly" sided with the majority, despite his "worry about the chilling effect the court’s opinion" could have on attorneys who feel the need for third parties to be present at initial consultations.

"They will now almost certainly refrain from inviting people like Kayla Fox's parents for fear that a court might later deem their presence at the consultation to have been objectively unnecessary to facilitate communication between the lawyer and prospective client," Hood wrote in his concurrence. "After all, privilege could be forfeited even when that prospective client is a loved one 35 days out from a stroke that might have caused brain damage."

Justice Monica Marquez and Justice Melissa Hart also concurred while Justice Carlos Armando Samour Jr., Justice Nathan Coats and Justice Brian Boatright dissented.

Fox suffered a stroke in the office of Chiropractor William Alfini Jr. at Brady Chiropractic Group in Grand Junction shortly after receiving treatment. The chiropractor and practice were named defendants in her subsequent lawsuit.

Fox's parents accompanied her to her first consult with Denver attorney James Leventhal.

"Leventhal recorded at least a portion of this initial consultation in order to make sure that he did not miss anything as he sought to learn the facts leading to Fox's stroke and the harm and damages that resulted from it," the background portion of the Supreme Court's opinion said. "Notably, the record reveals no effort by Leventhal to determine before conferring with Fox and her parents whether Fox's stroke caused any cognitive deficiencies such that her parents' presence was necessary to facilitate the consultation."

Mesa County District Court ordered Fox to produce the initial consultation recording after ruling the tape was not protected by attorney-client privilege because her parents had been present and that their presence was not required. The District Court also declined to consider several new arguments Fox raised in her a motion for reconsideration

In addition to siding with the district court about whether Fox must produce the recording, the narrow majority of Supreme Court justices also ruled the District Court had not abused its discretion in declining to consider Fox's new arguments.

Samour cited the lack of an evidentiary hearing in his dissenting opinion.

"...The district court did not hold an evidentiary hearing to resolve the conflicts in the exhibits submitted with the parties’ briefs. Instead, it made credibility assessments, resolved evidentiary conflicts, and reached factual findings based entirely on the paper record. Because I believe the district court erred in failing to hold an evidentiary hearing, I respectfully dissent," he wrote.

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