## Facts

- Heather C. Wesp filed a civil tort action alleging she was sexually abused as a child by her stepfather, Frank T. Brewer, and that her mother, Cheryl A. Brewer, was also liable.
- Related criminal charges were filed against Frank Brewer; he retained criminal defense counsel and met with counsel both privately and at least once in a meeting attended by Cheryl.
- After writing suicide letters, Frank and Cheryl Brewer died by suicide; the criminal case was dismissed.
- David E. Everson, as personal representative of both estates, was substituted as defendant in the civil action and retained Frank’s former criminal defense lawyers to represent the estates.
- During discovery, Wesp sought testimony and information from the former defense lawyers; the estates asserted attorney-client privilege.
- The district court ruled, among other things, that the suicide letters waived the privilege, the privilege did not survive Frank’s death, a testamentary exception “may apply,” the privilege could be overridden to avoid “manifest injustice,” and it would not hold a pretrial hearing on whether opposing counsel could be called as witnesses.
- The personal representative filed original proceedings in the Colorado Supreme Court challenging these privilege and procedure rulings.

## Issues

1. Whether the Brewers’ suicide letters waived attorney-client privilege as to Frank Brewer’s otherwise confidential communications with his attorneys.
2. Whether attorney-client privilege survives the death of the client and may be asserted by the client’s personal representative.
3. Whether a testamentary exception to the privilege applies in a tort action arising from alleged sexual abuse.
4. Whether a court may compel disclosure of privileged communications based on a general “manifest injustice” rationale.
5. Whether a trial court must hold a pretrial hearing and apply limiting standards before allowing a party to call opposing counsel as a witness.

## Decision

- The Colorado Supreme Court made the rules to show cause absolute and directed the district court to proceed consistently with its opinion.
- The court held the suicide letters did not waive privilege as to other communications because they disclosed, at most, information that was not privileged (communications made in the presence of a third party).
- The court held attorney-client privilege survives the client’s death, and the personal representative may assert or waive the privilege on the decedent’s behalf.
- The court rejected applying a broad testamentary exception and rejected overriding privilege based on generalized “manifest injustice.”
- The court required a pretrial evidentiary hearing and restrained showing before permitting one party to call opposing counsel as a witness, and found error in the district court’s refusal to make a pretrial determination.

## Legal Principles

- Attorney-client privilege protects only confidential communications made for the purpose of obtaining legal advice; communications made in the presence of a third party are generally not privileged.
- Disclosure of non-privileged communications does not operate as a waiver of privilege for separate, confidential attorney-client communications.
- Attorney-client privilege does not terminate upon the client’s death; the decedent’s personal representative is the appropriate holder of the privilege for purposes of litigation.
- Any testamentary exception is limited to disputes in which the decedent’s testamentary intent or disposition of property is directly at issue; it does not apply to unrelated tort litigation.
- Courts may not compel disclosure of privileged communications based on an open-ended fairness or “manifest injustice” balancing theory absent a recognized exception.
- Before allowing a party to call opposing counsel as a witness, the court must conduct a pretrial hearing and find the testimony is necessary and relevant, non-privileged (or within a recognized exception), and not reasonably obtainable from other sources.

## Conclusion

The Colorado Supreme Court reaffirmed strong protection for attorney-client privilege by holding it survives death, is not broadly waived by suicide letters describing non-confidential communications, and is not subject to a general fairness override; it also required pretrial screening before permitting a party to call opposing counsel as a witness.


Wesp v. Everson, 33 P.3d 191 (Colo. 2001)