Wesp v. Everson, No. 01SA100

• Docket Nº: No. 01SA100
• Citation: 33 P.3d 191
• Case Date: October 15, 2001
• Court: Supreme Court of Colorado

33 P.3d 191

In re Heather C. WESP, Plaintiff,
v.
David E. EVERSON, as personal representative of the Estate of Frank T. Brewer, and as personal representative of the Estate of Cheryl A. Brewer, Defendant

Nos. 01SA100, 01SA98.

Supreme Court of Colorado, En Banc.

October 15, 2001.

33 P.3d 193

The Easley Law Firm, P.C., Jeffrey D. Easley, San Diego, CA, Attorneys for Plaintiff

Paul A. Prendergast, Janelle M. Oswald, Littleton, CO, Attorneys for Defendant David E. Everson.

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

This original proceeding involves questions about the application of the attorney-client privilege and whether a pretrial hearing should be held before permitting one party to call opposing counsel as a witness at trial.

Plaintiff Heather Wesp, the respondent in this court, sought damages in tort against her mother and step-father, Cheryl and Frank Brewer, based on allegations that Frank Brewer had sexually abused her. Criminal charges were also filed based on the same allegations. After writing suicide letters to family and friends, both Brewers committed suicide. The criminal charges pending against Frank Brewer were dismissed and the personal representative of both Brewer estates was substituted as the party-defendant in the civil suit. Thereafter, the personal representative hired Frank Brewer's criminal defense attorneys to represent both estates on Wesp's claims. The personal representative is the petitioner in this court.

During discovery, Wesp requested information from the defendant that the defendant claims is protected by operation of the attorney-client privilege. Separately, Wesp also endorsed Frank Brewer's criminal defense attorneys as witnesses for the upcoming trial.

In a series of rulings, the district court held that: (1) the attorney-client privilege was waived by the Brewers' suicide letters; (2) the attorney-client privilege did not survive the death of Frank Brewer; (3) the testamentary exception to the attorney-client privilege may apply; (4) the privilege should be pierced because the exclusion at trial of testimony about communications between Frank Brewer and his criminal defense attorneys "would work a manifest injustice"; and (5) it would not hold a pretrial hearing or make a pretrial determination about whether the defendant's attorneys, formerly Frank Brewer's criminal defense attorneys, could be called as witnesses at trial.

The defendant in the trial court, the personal representative of the Brewers' estates, brought two original petitions claiming that the trial court exceeded its jurisdiction in making the above rulings. We issued orders to show cause and now join both actions in this opinion.

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We hold that the Brewers' suicide letters did not waive the protections of the attorney-client privilege because the letters disclosed attorney-client communications that both parties agree are not protected since they were made in the presence of a third party. We hold that the attorney-client privilege generally survives the death of the client and that the testamentary exception to the privilege does not apply in this case. We also hold that the attorney-client privilege may not be pierced to correct a manifest injustice because the creation of such an exception would frustrate the purposes of the privilege and is not supported by precedent. Lastly, we hold that the trial court abused its discretion by refusing to conduct a pretrial hearing and reach a pretrial decision about whether Frank Brewer's criminal defense attorneys, who now represent the defendant, may be called as witnesses at trial. Hence, we make both rules absolute and direct the district court to hold a pretrial hearing on the question of whether the defense attorneys may be called to testify at trial

II. JURISDICTION

An original proceeding under C.A.R. 21 is an extraordinary remedy that is limited in purpose and availability. People v. Dist. Court, 868 P.2d 400, 403 (Colo.1994). It is a proper remedy in cases where the trial court has abused its discretion and where an appellate remedy would not be adequate. Halaby, McCrea & Cross v. Hoffman, 831 P.2d 902, 905 (Colo.1992). We generally elect to hear cases under C.A.R. 21 that raise issues of significant public importance that we have not yet considered. City & County of Denver v. Dist. Court, 939 P.2d 1353, 1361 (Colo.1997).

In the present case, the trial court has issued an order compelling the defendant to disclose communications that he contends are protected by privilege. Post-trial review would not provide adequate relief since any privileged communications would have already been revealed by the time the case reached an appellate court. See People v. Bloom, 193 N.Y. 1, 85 N.E. 824, 826 (1908) ("[W]hen a secret is out, it is out for all time, and cannot be caught again like a bird, and put back in its cage."). Further, because of the trial court's order refusing to conduct a pretrial hearing on whether Wesp may be permitted to call the defendant's attorneys as witnesses at trial, defense counsel has been forced to withdraw as trial counsel. The scope of the attorney-client privilege and the ability of a party to force opposing counsel to withdraw are issues of great significance to our legal system. Therefore, we exercise original jurisdiction in this case.

III. FACTS AND PROCEEDINGS BELOW

In July of 1998, Heather Wesp reported to the police that her step-father, Frank Brewer, had sexually abused her during her childhood. Anticipating that criminal charges would be brought, Frank Brewer hired attorney Paul Prendergast and his associate, Janelle Oswald, to defend him.

Frank Brewer was charged with nineteen counts of aggravated incest and sexual assault. Prendergast discussed possible plea bargains with the district attorney's office but no agreement was reached.

The defendant alleges that, during the course of Prendergast's representation of Frank Brewer, Frank Brewer spoke on the telephone and met privately with Prendergast ("private meetings"). Additionally, Prendergast met with both Frank and Cheryl Brewer on a Saturday in November ("joint meeting"). At the joint meeting, Prendergast told Frank Brewer of the criminal charges that had been filed against Frank Brewer, of the penalties associated with these charges, and of a possible plea agreement. According to Cheryl Brewer, Prendergast also recommended that Frank Brewer accept the plea bargain offered by the district attorney.

In the fall of 1998, Wesp brought civil claims seeking money damages against both Frank and Cheryl Brewer. Initially, Prendergast and Oswald did not represent either Frank or Cheryl Brewer in the civil case.

Approximately one week after the criminal charges were brought against Frank Brewer, the Brewers both prepared holographic

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wills.¹ Additionally, the Brewers wrote letters containing denials that Frank Brewer had done the acts of which Wesp had accused him and provided explanations for their decisions to commit suicide. In giving these explanations, the Brewers related some of the information and advice about the criminal case that had been given to Frank Brewer by Prendergast at the joint meeting. For instance, in one letter to a friend, Cheryl Brewer wrote that "[t]he lawyer said with our record + Heather + Kerry [to] testify. . . that it would be very, very hard to disprove this. The Lawyer wants Frank to plea + go to jail before Christmas."² After writing these letters, the Brewers committed suicide

The personal representative of the estates of Frank and Cheryl Brewer was then substituted as the defendant in the civil action. Several months later, Prendergast and Oswald entered their appearance as counsel for the defendant in this civil case.

Subsequently, Wesp gave notice that she intended to depose Prendergast,³ who filed a Motion for a Protective Order to quash the deposition. The trial court denied the motion, holding in essence that the attorney-client privilege does not survive death. The trial court also suggested that the testamentary exception would apply and that Frank Brewer waived any privilege with his suicide letters.⁴

Wesp's counsel deposed Prendergast and Oswald. Both refused to answer almost all questions, citing attorney-client privilege and the work product doctrine.

Wesp endorsed both Prendergast and Oswald as witnesses at trial. In response, the defendant requested that the trial court conduct a pretrial hearing, pursuant to Williams v. District Court, 700 P.2d 549 (Colo.1985), to make the requisite findings of fact and conclusions of law necessary to permit Wesp to call defense counsel as witnesses at trial.

At the trial court's request, Wesp submitted an offer of proof. However, her offer of proof did not state the specific content of the defense attorneys' anticipated testimony. Instead, it contained general allegations and little supportive detail.⁵ Plaintiff argued that

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Prendergast and Oswald would have knowledge of Frank Brewer's state of mind at the time of his suicide. However, Wesp provided no explanation as to why Frank Brewer's state of mind at the time of his suicide is relevant to Wesp's tort claims.

A second trial court judge⁶ issued a second ruling which partially qualified the first judge's ruling that the attorney-client privilege did not survive the death of Frank Brewer, stating, "[T]he attorney-client privilege may survive the death of the client in some instances." However, the trial court ultimately concluded that "the exclusion of such testimony [about attorney-client communications] in this case would work a manifest injustice."

The trial court also declined to conduct a pretrial Williams hearing, ruling that the Williams analysis could be performed at trial when Prendergast and Oswald were called to testify. Because the trial court refused to conduct the pretrial hearing, both attorneys were forced to withdraw as trial counsel...