June 26, 2017

Colorado Court of Appeals: Attorney’s Prelitigation Statements Must Be Made in Good Faith to Qualify as Privileged

The Colorado Court of Appeals issued its opinion in Begley v. Ireson on Thursday, January 12, 2017.

Belinda Begley and Robert Hirsch, and their joint revocable trust (collectively, plaintiffs), purchased a property in Denver with the intent of demolishing the existing house and building a new house. Their architect’s plans were approved by the City & County of Denver, and plaintiffs contracted with a builder to begin demolition in anticipation of construction. The builder demolished the old house and began the shoring work for the new house. The neighbors, Ireson and Hoeckele, along with their attorney, Gibbs (collectively, defendants), made several threatening statements to the builder, which caused him to cease work and breach his contract with plaintiffs.

Plaintiffs filed a complaint against defendants, alleging intentional interference with a contract and intentional interference with prospective contractual relations. Several days later, defendants filed suit against plaintiffs, and moved to dismiss plaintiffs’ complaint under C.R.C.P. 12(b)(5) for failure to state a claim, arguing that their allegedly tortious statements were made in anticipation of litigation and were therefore protected. The district court apparently took judicial notice of defendants’ suit and granted their C.R.C.P. 12(b)(5) motion. Plaintiffs appealed.

The Colorado Court of Appeals first noted that motions to dismiss under C.R.C.P. 12(b)(5) are viewed with disfavor. The district court had ruled that the plaintiffs’ complaint failed to state a claim because there was no allegation that the statements by Hoeckele, Ireson, and Gibbs caused the builder to breach his contract. The court of appeals found this was error. The complaint alleged with specificity several incidents in which Ireson, Hoeckele, and Gibbs interfered with the construction contract, and the court held that nothing more was required to survive the motion to dismiss. The court reversed the district court’s grant of defendants’ motion.

The district court next ruled that because Gibbs’ statements and communications to the builder were made while he was representing Ireson and Hoeckele and were “in anticipation and in furtherance of litigation,” they were absolutely privileged against the torts that plaintiffs alleged. The court of appeals again found that this ruling was in error. The court analyzed several state appellate court decisions, as well as section 586 of the Restatement (Second) of Torts, and determined that prelitigation statements must be made in good faith to be privileged. Because the district court made no finding as to whether Gibbs’ statements were made in good faith, the court of appeals reversed and remanded.

The court of appeals reversed the district court’s rulings and remanded for further proceedings.

Inadvertent Disclosure — Damage Control, Recipient Requirements, and More

EthicsInadvertent disclosure of privileged or confidential information is not a new problem for attorneys. However, email and the electronic age have widened the scope of inadvertent disclosure. What happens when you use your email’s auto-fill feature and accidentally fill opposing counsel’s name instead of your client’s? How about when you hit “Reply All” instead of only replying to one party, or when you reply instead of forwarding? These problems are the stuff of nightmares.

To address the problems created by inadvertent disclosure of privileged or confidential information, the Colorado Bar Association Ethics Committee created Formal Opinion 108, adopted on May 20, 2000. Formal Opinion 108 contemplates that a lawyer who receives documents (“receiving lawyer”) from an adverse party or an adverse party’s lawyer (“sending lawyer”) has an ethical duty to disclose the receipt of the privileged or confidential documents to the sending lawyer. If the receiving lawyer realizes the inadvertence of the disclosure before examining the documents, the receiving lawyer has a duty to not examine the documents and follow the sending lawyer’s directions regarding disposal or return of the documents.

In 2008, the Colorado Supreme Court repealed and reenacted the Colorado Rules of Professional Conduct. Rule 4.4(b) provides that “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Rule 4.4(b) applies to situations in which the sending lawyer accidentally provides privileged or confidential information to the receiving lawyer, such as when someone hits “Reply All” instead of forwarding to the client.

Rule 4.4(c) addresses a far less common scenario, when the sending lawyer realizes the disclosure prior to receipt by the receiving lawyer and contacts the receiving lawyer before the privileged or confidential information is viewed. Rule 4.4(c) requires the receiving lawyer to “abide by the sender’s instructions as to its disposition.” Comments [2] and [3] to Rule 4.4 expand on the receiving lawyer’s duties, including providing that as a matter of professional courtesy the receiving lawyer may inform the sending lawyer of the inadvertent disclosure.

Colorado Rule of Civil Procedure 26(b)(5)(B) also addresses inadvertent disclosure. C.R.C.P. 26(b)(5)(B) imposes on the receiving lawyer a mandatory prohibition on review, use, or disclosure of the information until the privilege claim is resolved, if the sending lawyer informs the receiving lawyer of the inadvertent disclosure. C.R.C.P. 26(b)(5)(B) differs slightly from Fed. R. Civ. P. 26(b)(5)(B); lawyers who practice in both federal and state courts should familiarize themselves with the different rules.

On Monday, November 28, 2016, attorney Cecil E. Morris, Jr., will deliver a lunchtime presentation on inadvertent disclosure, which is available for one general CLE credit and one ethics credit. This program is a great way to learn about what to do in case you inadvertently disclose confidential or privileged information, and also what to do if you receive information inadvertently disclosed. Cecil will discuss the differences between the federal and state rules, and will also address the substantive areas of law most affected by inadvertent disclosure. Register here or by clicking the links below.

 

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CLE Program: Inadvertent Disclosure – Professional Liability Series

This CLE presentation will occur on November 28, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 12 p.m. to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Supreme Court: Reverse Transfer Request Does Not Waive Psychologist-Patient Privilege

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist-Patient Privilege.

This case raises two questions involving what a trial court may order when a juvenile seeks reverse-transfer of her criminal case from trial court to juvenile court. First, when a juvenile requests a reverse-transfer hearing, does she waive her psychotherapist-patient privilege, thereby authorizing a trial court to order her to produce privileged mental health records pursuant to C.R.S. § 19-2-517(3)(b)(VI)? Second, does C.R.S. § 19-2-517(3)(b)(VI) give a trial court the power to order a juvenile to submit to a state mental health assessment? As to the first question, the Colorado Supreme Court held that, because nothing in the statute states that a juvenile waives her psychotherapist–patient privilege by requesting a reverse-transfer hearing, a trial court cannot order the juvenile to produce privileged mental health records. As to the second question, the court held that, because nothing in the statute explicitly grants a trial court the power to order a mental health assessment, a trial court cannot order such an assessment. The reverse-transfer statute only requires that the trial court consider mental health records “made available” (i.e., voluntarily waived by the privilege-holder) to the trial court and the parties. Therefore, the court made its rule to show cause absolute and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Has No Right to Access Witness’s Competency Evaluation

The Colorado Court of Appeals issued its opinion in People v. Zapata on Thursday, May 19, 2016.

Defendant’s ex-girlfriend claimed the owner of the convenience store at which she worked had sexually harassed her, including grabbing her crotch, buttocks, and breasts. Defendant and his friend of six months, Murillo, went to the convenience store late one night, and Murillo quickly walked behind the counter and stabbed the owner’s son with a knife. A high-quality surveillance video showed the ensuing struggle, with Defendant watching from the other side of the counter. When the owner’s son began hitting Murillo on the head with a hammer, he pleaded with Defendant for help, and Defendant turned and ran.

Defendant was charged with conspiracy to commit first degree murder, attempted first degree murder, and first degree assault. Murillo, who suffered permanent brain damage as a result of the incident, was charged separately. He pleaded guilty in his case and testified at Defendant’s trial, remarking that he was testifying against Defendant because Defendant had left him at the store to die. The jury found Defendant guilty of attempted second degree murder and first degree assault.

He appealed, contending the district court erred by not requiring the prosecution to disclose statements Murillo made during competency evaluations in his separate trial and by admitting res gestae evidence of defendant’s controlling and threatening behavior with his ex-girlfriend. The court of appeals found no error. As to the competency evaluations, the district court ruled that Defendant was not entitled to them as a matter of law, and the court of appeals agreed. The court noted that Murillo had a valid privilege that he did not waive. The court further found that Defendant’s Confrontation Clause rights did not trump Murillo’s privilege.

The court of appeals also found that if there was error in admitting the res gestae evidence regarding Defendant’s controlling behavior, it was harmless. The court noted that even without the res gestae evidence, the prosecution’s evidence in the case was strong and the defense theory was weak, therefore even if the evidence was erroneously admitted, any error was harmless.

The judgment of conviction was affirmed.

Colorado Court of Appeals: Physician’s Prescription Order Falls Within Exception to Physician-Patient Privilege

The Colorado Court of Appeals issued its opinion in People v. Moon on Thursday, March 12, 2015.

Prescription—Physician–Patient Privilege—CRS § 18-18-415(1)(b)—Juror.

A doctor wrote Moon a prescription order for six Vicodin pills. Moon later gave a pharmacy a prescription order for sixty Vicodin pills. A pharmacist called the doctor, who said that he had prescribed six pills, not sixty. At trial, Moon testified that she received a prescription order from the doctor and gave it to the pharmacy, but she denied altering it.

On appeal, Moon contended that the trial court erroneously allowed her doctor to reveal information at trial that was protected by Colorado’s physician–patient privilege. The doctor testified that he wrote two prescription orders for Moon, one for antibiotic eyedrops and the other for six extra-strength Vicodin pills. The court also admitted copies of the two original prescription orders contained in Moon’s medical records. This evidence was not privileged in light of CRS § 18-18-415(1)(b)’s statutory exception to privileged communications for persons who alter an order in an attempt to obtain a controlled substance by fraud or deceit.

Moon also contended that the trial court abused its discretion in denying her request to excuse a juror who revealed during trial that she knew the pharmacist. The pharmacist had filled the juror’s prescriptions. The juror’s relationship with the pharmacist was not ongoing and she said that she could be fair and impartial despite knowing the pharmacist. Therefore, the court was not required to dismiss her. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Threatening Statements Not Protected by Psychologist-Patient Privilege

The Colorado Supreme Court issued its opinion in In re People v. Kailey on Monday, June 23, 2014.

Who May Not Testify Without Consent—CRS § 13-90-107(1)(g)—Civil Liability—Mental Health Providers—Duty to Warn—CRS § 13-21-117(2).

In this original CAR 21 proceeding, the Supreme Court held that if a mental health treatment provider believes that statements made by a patient during a therapy session threaten imminent physical violence against a specific person or persons, and accordingly trigger that provider’s legal duty to warn under CRS §13-21-117(2), the patient’s threatening statements are not protected by the psychologist–patient privilege provided by CRS § 13-90-107(1)(g). Consequently, the Court also held that the trial court erred when it excluded threatening statements made by a patient to a mental health treatment provider on the ground that the statements were barred by the psychologist–patient privilege. The rule was made absolute and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Court of Appeals: Statements to Hospital Chaplain Not Privileged

The Colorado Court of Appeals issued its opinion in People v. Trammell on Thursday, March 27, 2014.

Clergy–Communicant Privilege—Confidential.

After defendant attempted suicide while incarcerated, he was hospitalized for treatment of his wounds. While hospitalized, defendant attacked the sheriff’s deputy on guard with a metal bar, striking the deputy on the head. A struggle ensued. The deputy testified that during the struggle, defendant tried to remove the deputy’s gun from its holster. Defendant also struck a nurse on the head, causing a laceration that required stitches, and causing lasting effects on the nurse’s memory. Another nurse who was struck received a minor cut.

On appeal, defendant contended that the statements he made to the hospital chaplain after the incident were privileged under the clergy–communicant privilege, and that the trial court therefore erred when it admitted the chaplain’s testimony that defendant had planned the altercation. Defendant spoke with the chaplain in defendant’s hospital room while he was being guarded by a deputy. Because defendant did not take any precautions to keep those communications confidential or private, the clergy–communicant privilege does not apply. The judgment and sentence were affirmed.

Summary and full case available here.

Colorado Supreme Court: Trial Court Must Become Involved in Discovery Process if Party Claims Information Not Relevant to Claim or Defense

The Colorado Supreme Court issued its opinion in In re DCP Midstream LP v. Anadarko Petroleum Corp. on Monday, June 24, 2013.

CRCP 26(b)—Attorney–Client Privilege.

The Supreme Court held that CRCP 26(b) requires trial courts to take an active role managing discovery when a scope objection is raised. The trial court must determine the appropriate scope of discovery in light of the reasonable needs of the case and tailor discovery to those needs. To resolve a dispute regarding the proper scope of discovery, the trial court should, at a minimum, consider the cost–benefit and proportionality factors set forth in CRCP 26(b)(2)(F). The Court also held that title opinions, like any document sought in discovery, may contain privileged attorney–client communications if the parameters of that doctrine are met.

Summary and full case available here.

Tenth Circuit: Brady Requires Party to Disclose Mental Health Records in Capital Case

The Tenth Circuit published its opinion in Browning v. Trammell on Monday, May 6, 2013.

This case turns largely on principles the Supreme Court established in Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Court held that an individual’s constitutional right to a fair trial obligates the prosecution in a criminal case to turn over evidence to the defense in certain circumstances. Specifically, under Brady, the State violates a defendant’s right to due process if it withholds evidence that is favorable to the defense and material to the defendant’s guilt or punishment. Difficulty arises, however, when the Brady obligation to disclose comes up against the various legal privileges that protect sensitive information from disclosure, such as the psychotherapist-patient privilege at issue here. In such a situation, the Supreme Court has directed lower courts to review such information in camera to determine whether it meets the Brady standard. Pennsylvania v. Ritchie, 480 U.S. 39, 57–58 (1987).

On February 18, 2001, Harry and Teresa Hye were shot to death and their house burned to the ground. Their adopted daughter, Cenessa Tackett, was also shot but survived and escaped the burning house. Tackett identified two perpetrators: her former boyfriend, Michael Browning, and another man named Shane Pethel. The State arrested them and charged them with capital murder.

During pretrial proceedings, Tackett’s attorney accidentally faxed two psychiatric reports to the prosecution. According to the first report, Tackett displayed “magical thinking” and a “blurring of reality and fantasy.” The second report described Tackett as manipulative, grandiose, egocentric, and stated that she typically projected blame onto others. The report noted memory deficits. It described Tackett as a “type . . . rarely seen except in inpatient facilities.” Tackett was described as assaultive, combative, or as having a homicidal potential that must be carefully considered.

When the prosecution received these reports, it revealed their existence but not their contents to the defense. Browning moved to compel production, which the trial court denied.

The trial court severed Browning’s case from that of his co-defendant, Pethel. Browning’s case went to trial first. No direct evidence besides Tackett’s testimony connected Browning to the crime. The State’s case therefore stood or fell largely on Tackett’s eyewitness testimony and its credibility. The jury convicted Browning on all counts, and returned a sentence of death for the murders of Harry and Teresa Hye.

Having exhausted all state post-conviction remedies, Browning filed a 28 U.S.C. § 2254 habeas corpus petition in the Northern District of Oklahoma. Browning raised several arguments, including that Tackett’s mental health records should have been disclosed. Reviewing those records in camera, the district court disagreed with the Oklahoma courts’ conclusion that the records contained nothing favorable to Browning. It therefore ordered those records disclosed to Browning’s habeas counsel, and, after briefing, concluded that Oklahoma Court of Criminal Appeals’ (OCCA’s) determination of this issue was an unreasonable application of clearly established federal law. The district court therefore granted a conditional writ of habeas corpus, requiring the State to retry Browning within 180 days or release him.

The federal district court cannot grant habeas corpus simply because it disagrees with the state court. Rather, if “fairminded jurists could disagree on the correctness of the state court’s decision,” then the federal court must defer to the state court. Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).

The defense argued they should be permitted to view the mental health records for purposes of this habeas corpus petition. The Tenth Circuit disagreed.  The Tenth Circuit held that a Brady claim resolved through the process established in Ritchie, i.e., an in camera review, has been “adjudicated on the merits” for purposes of § 2254(d).

The Tenth Circuit confined its analysis of favorability and materiality to the record before the state trial court. The Court therefore could not consider Pethel’s confession and guilty plea, nor could it consider evidence Browning developed in post-conviction proceedings that he believed favored his theory of the case.

Evidence is “favorable to the defense” if it is exculpatory or impeaching. Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is “material” if “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627 (2012). A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

On the exculpatory side, Tackett’s records describe her as hostile, assaultive, combative, and even potentially homicidal. Such evidence tends to show that a person with a motive to kill might even have a disposition to kill. On the impeaching side, Tackett’s psychiatric evaluations evinced, among other things, memory deficits, magical thinking, blurring of reality and fantasy, and projection of blame onto others. This is classic impeachment evidence.

Accordingly, the Tenth Circuit disagreed with the district court’s disposition of the favorability question: “There is no reasonable argument or theory that could support the Oklahoma courts’ conclusion that the sealed material contained nothing favorable to Browning’s defense.”

The Court then turned to the question of whether Tackett’s mental health records would have been material to Browning’s case.

Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different. A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine confidence in the outcome of the trial.

The Tenth Circuit concluded it was difficult to see how the Oklahoma courts could reasonably conclude there was nothing material about a recent diagnosis of a severe mental disorder that made Tackett hostile, assaultive, combative, and even potentially homicidal, or that Tackett was known to blur reality and fantasy and project blame onto others.

The district court’s grant of a conditional writ of habeas corpus is AFFIRMED.

Chief Justice Directive 04-06 Amended by Colorado Supreme Court

In March 2013, the Colorado Supreme Court updated Chief Justice Directive (CJD) 04-06, concerning appointments by the Office of the Child’s Representative. The changes are in response to the Colorado Supreme Court opinion in L.A.N. et al. v. L.M.B.

The decision in L.A.N. held that the GAL holds the child’s psychotherapist-patient privilege when the child is too young to hold the privilege, the child’s interests are adverse to his or her parents’ interests, and the privilege is not abrogated by C.R.S. § 19-3-311.

The updates to the CJD are intended in part to provide counsel to children in dependency and neglect cases who have been determined of sufficient age and competent to hold their own patient-therapist privilege so that the counsel may advise the children of their privilege. The updates also clarify that appointments as counsel for children in D&N proceedings may be made from the Office of the Child’s Representative’s D&N appointment list. The CJD also clarifies payment procedures for these appointed attorneys.

Click here to view a PDF of updated CJD 04-06. For all of the Chief Justice Directives, click here.

Colorado Supreme Court: Guardian ad Litem Holds Child’s Psychotherapist-Patient Privilege in Dependency & Neglect Proceeding if Three-Part Test Met

The Colorado Supreme Court issued its opinion in L.A.N. v. L.M.B. on Tuesday, January 22, 2013.

Dependency and Neglect—Psychotherapist–Patient Privilege—Guardian ad Litem—Waiver.

The Supreme Court affirmed the court of appeals’ finding that the guardian ad litem (GAL) held the minor child’s psychotherapist–patient privilege in this dependency and neglect proceeding. A GAL holds a minor child’s psychotherapist–patient privilege in a dependency and neglect case when: (1) the child is too young or otherwise incompetent to hold the privilege; (2) the child’s interests are adverse to those of his or her parent(s); and (3) CRS §19-3-311 does not abrogate the privilege.

The Court also affirmed the court of appeals’ holding that the GAL partially waived the child’s psychotherapist–patient privilege when she disseminated a letter from the child’s therapist to the juvenile court and to all of the parties. However, the Court disagreed with the procedure the court of appeals described for determining the scope of the waiver. On remand, the juvenile court must determine the scope of the waiver consistent with the Court’s instructions.

Summary and full case available here.