The "Testamentary Exception" - Potential Ethical Quicksand

I recently had occasion to revisit the testamentary exception in Colorado and the sometimes subtle differences between the attorney-client privilege, waiver, exception, and the Colorado Rules of Professional Conduct regarding confidential information.

The circumstances were routine: years ago an attorney had drafted a will. The testatrix was now deceased and a squabble had broken out among the heirs. The heirs’ attorneys had agreed to conduct informal discovery regarding a pretermitted child and contacted the lawyer to ask that he provide access to his estate planning file. They also asked him to consent to an informal interview regarding the circumstances surrounding the making and execution of the will, including the testatrix’s state of mind. The lawyer’s file had years earlier been transferred to other counsel.

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