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                                                     ADVANCE SHEET HEADNOTE
                                                                January 13, 2020

                                      2020 CO 4

No. 19SA129 In re Rademacher v. Greschler—Attorney-Client Privilege—Implied
Waiver—Statute of Limitations.

      In this proceeding brought pursuant to C.A.R. 21, plaintiff challenges the

district court’s ruling that she impliedly waived her attorney-client privilege by

filing a legal malpractice complaint close to the expiration of the two-year statute

of limitations and by then contesting defendant’s statute of limitations defense.

      The supreme court concludes that on the facts presented, plaintiff did not

assert a claim or defense that either focused or depended on advice given by her

counsel or that placed any privileged communications at issue. Accordingly, the

court further concludes that plaintiff did not impliedly waive her attorney-client

privilege in this case.

      The court therefore makes the rule to show cause absolute.
                The Supreme Court of the State of Colorado
                2 East 14th Avenue • Denver, Colorado 80203

                                 2020 CO 4

                     Supreme Court Case No. 19SA129
                  Original Proceeding Pursuant to C.A.R. 21
             Boulder County District Court Case No. 17CV30454
                  Honorable Thomas F. Mulvahill, Judge
                                   In Re
                                 Plaintiff:

                             Carol Rademacher,

                                     v.

                                Defendant:

                              Ira E. Greschler.


                    Rule to Show Cause Made Absolute
                                  en banc
                              January 13, 2020


Attorneys for Plaintiff:
Purvis Gray Thomson, LLP
John A. Purvis
      Boulder, Colorado

Chalat Hatten & Banker, PC
James H. Chalat
      Denver, Colorado

Attorneys for Defendant:
Childs McCune LLC
Daniel R. McCune
Margrit Lent Parker
     Denver, Colorado




JUSTICE GABRIEL delivered the Opinion of the Court.


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¶1    In this proceeding brought pursuant to C.A.R. 21, plaintiff Carol

Rademacher challenges the district court’s ruling that she impliedly waived her

attorney-client privilege by filing a legal malpractice complaint close to the

expiration of the two-year statute of limitations and by then contesting defendant

Ira Greschler’s statute of limitations defense.

¶2    We conclude that on the facts presented, Rademacher did not assert a claim

or defense that either focused or depended on advice given by her counsel or that

placed any privileged communications at issue. Accordingly, we further conclude

that Rademacher did not impliedly waive her attorney-client privilege in this case.

¶3    We therefore make our rule to show cause absolute.

                     I. Facts and Procedural Background

¶4    This case has a lengthy procedural history, including two appeals to the

court of appeals, but only some of that history is pertinent here.

¶5    Greschler served as Rademacher’s attorney on various matters for more

than two decades. One of the matters in which Greschler represented Rademacher

involved the settlement of potential civil claims that Rademacher had brought

against a man named John Becker and his wife.

¶6    As pertinent here, for approximately ten years, Rademacher and Becker

were involved in an extramarital relationship. Becker’s wife ultimately confronted

and assaulted Rademacher, after which Rademacher contacted the police. As a


                                          3
result, the police charged Ms. Becker with assault, and Rademacher submitted a

victim impact statement, asking that Ms. Becker be prosecuted to the full extent of

the law.

¶7    Subsequently, the Beckers and Rademacher entered into a settlement

agreement, under which Rademacher agreed not to pursue any claims against the

Beckers and to ask the Boulder District Attorney’s office to offer Ms. Becker a

deferred sentence. In exchange for these promises, Becker executed a $300,000

promissory note payable to Rademacher.

¶8    Pursuant to the agreement, Rademacher signed a letter to the district

attorney indicating her desire that Ms. Becker be offered a deferred sentence, and

Becker made several payments on the note totaling $35,000. Becker, however,

subsequently stopped making payments, and Rademacher, who was then still

represented by Greschler, sued to enforce the agreement.

¶9    A jury ultimately found for Rademacher, and Becker appealed. On May 1,

2015, after Greschler had orally argued the case in the court of appeals but before

the division issued its opinion, Rademacher’s divorce attorney, Shawn Ettingoff,

sent Greschler a letter “to convey [Rademacher’s] dissatisfaction with [Greschler’s]

inadequate representation” in the dispute with Becker.         This dissatisfaction

principally concerned Greschler’s report that at the oral argument in the court of

appeals, the division, apparently to Greschler’s surprise, had raised significant

                                         4
public policy concerns regarding the validity and enforceability of the

above-described settlement agreement. Much of Ettingoff’s letter focused on how,

in his view, Greschler should not have been surprised by the division’s articulated

public policy concerns and on how ill-prepared Ettingoff felt Greschler was for

oral argument. The letter also noted that Greschler’s conduct in representing

Rademacher “helped create and perpetuate a situation that may very well lead to

the reversal of the judgment in [Rademacher’s] favor.” And the letter set forth a

variety of concerns regarding Greschler’s billing practices. Notably, the letter

made no demand on Greschler relating to any malpractice or potential malpractice

claim.     Instead, the letter made an offer to settle Greschler’s claim against

Rademacher for outstanding attorney fees.

¶10      Thereafter, on September 24, 2015, a division of the court of appeals issued

its opinion, ruling that the agreement between Rademacher and Becker was void

as against public policy. Rademacher v. Becker, 2015 COA 133, ¶¶ 24–28, 374 P.3d

499, 503–04.

¶11      On May 5, 2017, Rademacher then filed the present action against

Greschler, asserting, among other things, a claim for professional negligence (legal

malpractice). Several months later, Greschler moved for summary judgment on

this claim, arguing that it was barred by the applicable statute of limitations. In

support of this contention, he asserted that Rademacher’s cause of action had

                                           5
accrued no later than May 1, 2015, the date on which Ettingoff sent the letter on

Rademacher’s behalf detailing “the same allegations” of negligence that later

appeared in her complaint in this case. Ettingoff’s letter, Greschler asserted,

demonstrated that Rademacher knew of her legal malpractice claim at that time

and that the statute of limitations therefore required that she file her lawsuit no

later than May 1, 2017, which she did not do.

¶12   Rademacher responded in pertinent part that her claim did not accrue at the

time of Ettingoff’s letter because she had suffered no compensable injury until the

court of appeals division ruled on September 24, 2015 that the settlement

agreement between Rademacher and Becker was void. She argued that until that

time, any injury that she had suffered was merely speculative or contingent and

thus any malpractice claim had not yet ripened. She further asserted that (1) she

had hired Ettingoff to represent her only in her divorce; (2) his letter to Greschler

merely sought to resolve a dispute over the fees charged by Greschler to

Rademacher; and (3) the letter was a part of Ettingoff’s efforts to get Rademacher’s

financial affairs in order in the wake of the divorce proceeding. Rademacher

attached affidavits from herself and Ettingoff to support these contentions.

¶13   The district court granted Greschler’s motion, but a division of the court of

appeals subsequently reversed.       Rademacher v. Greschler, No. 18CA114, ¶ 28

(Dec. 27, 2018). In so ruling, the division agreed that any injury to Rademacher

                                         6
was speculative at the time Ettingoff sent his letter to Greschler and that therefore

Rademacher “may not have suffered an injury or damages until the appellate

decision on September 24, 2015, finally determined that the settlement agreement

was void.” Id. at ¶¶ 22, 24. The division thus concluded that “a genuine issue of

fact exists concerning the timing of any injury” and therefore remanded the case

to the district court for further proceedings. Id. at ¶¶ 24, 28.

¶14   On remand, Greschler requested that Rademacher produce all of Ettingoff’s

files regarding Ettingoff’s representation of Rademacher from the time of his

retention by her up to and including the date of Ettingoff’s May 1, 2015 letter to

Greschler. In support of this request, Greschler asserted that those records were

relevant to the statute of limitations issue and also to impeach the Rademacher

and Ettingoff affidavits that Rademacher had submitted in response to Greschler’s

motion for summary judgment.

¶15   Following a joint request for a discovery hearing and advanced briefing, a

district court magistrate concluded that “the Plaintiff has placed at issue the

attorney-client privilege by the filing of this lawsuit.” Specifically, the magistrate

stated, “In filing her complaint in this matter, the Plaintiff is asserting her claim is

a timely and valid claim. It is through the filing of her complaint the Court finds

the Plaintiff has put the protected information at issue by making it relevant to the

case.” Then, responding to Rademacher’s argument that she did not put the

                                           7
protected information at issue but rather Greschler did, the magistrate stated, “It

was the Plaintiff’s decision to file her complaint so near the expiration of the two-

year statute of limitations that created the controversy. The result is a good-faith

defense regarding the statute of limitations being advanced by the Defendant.”

Finally, the magistrate observed that “application of the privilege would deny the

Defendant access to information that is vital to his defense and that no other means

are available in which the Defendant can obtain this information.”

¶16   In light of the foregoing, the magistrate found an implied waiver of the

attorney-client privilege, although that waiver was limited in time and scope to

information that was relevant to the statute of limitations defense. The magistrate

thus directed Rademacher to deliver to the court Ettingoff’s complete file,

including billing records, from the time he was retained through May 2015, so that

the magistrate could review those documents in camera to ensure that only

documents materially related to the statute of limitations defense would be

produced.

¶17   Rademacher sought district court review of the magistrate’s ruling, but the

district court affirmed the magistrate’s findings of fact and conclusions of law. As

pertinent here, the district court found the Nebraska case of League v. Vanice,

374 N.W.2d 849 (Neb. 1985), to be “exactly on point” and concluded that in this

case, as was the case with the plaintiff and her counsel in League, Ettingoff’s

                                         8
communications with Rademacher related to when Rademacher knew of her

claims and thus to whether her claims were timely.

¶18   Rademacher subsequently filed the present C.A.R. 21 petition, and we

issued a rule to show cause.

                                   II. Analysis

¶19   We begin by discussing our jurisdiction to hear this matter. We then

proceed to discuss Rademacher’s arguments regarding the Ettingoff documents,

and we conclude that Rademacher did not impliedly waive her attorney-client

privilege merely by filing her suit near the expiration of the statute of limitations

and by then contesting Greschler’s statute of limitations defense.

                            A. Original Jurisdiction

¶20   The exercise of our original jurisdiction under C.A.R. 21 rests within our sole

discretion.   Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005).       An original

proceeding under C.A.R. 21 is an extraordinary remedy that is limited both in its

purpose and availability. Wesp v. Everson, 33 P.3d 191, 194 (Colo. 2001). As

pertinent here, we have exercised our jurisdiction under C.A.R. 21 when an

appellate remedy would be inadequate, Fognani, 115 P.3d at 1271, and when a

party may suffer irreparable harm absent relief under C.A.R. 21, People v. Turner,

109 P.3d 639, 641 (Colo. 2005). We have also exercised our discretion under




                                          9
C.A.R. 21 to hear cases that “raise issues of significant public importance that we

have not yet considered.” Wesp, 33 P.3d at 194.

¶21   Here, the magistrate and the district court determined that Rademacher had

impliedly waived the attorney-client privilege protecting communications with

one of her attorneys. The erroneous production of such communications would

damage Rademacher and could not be cured on appeal because the damage would

occur upon disclosure to Greschler, regardless of the ultimate outcome of any

appeal from a final judgment. See Gateway Logistics, Inc. v. Smay, 2013 CO 25, ¶ 12,

302 P.3d 235, 239.

¶22   Accordingly, we deem it appropriate to exercise our original jurisdiction in

this case.

             B. Implied Waiver of the Attorney-Client Privilege
¶23   “The attorney-client privilege shields from disclosure communications

between an attorney and a client relating to legal advice.” State Farm Fire & Cas.

Co. v. Griggs, 2018 CO 50, ¶ 16, 419 P.3d 572, 575. The client, who is the holder of

the privilege, may waive this privilege either expressly or impliedly. Id. A client

impliedly waives the attorney-client privilege “when he or she (1) discloses

privileged communications to a third party or (2) asserts a claim or defense

focusing on advice given by the attorney, thereby placing the allegedly privileged

communications at issue.” Id. The mere fact, however, that privileged information


                                        10
might become relevant in a particular lawsuit “could not alone be enough to

establish an implied waiver. If it could, then the privilege would lose much of its

protective force because ‘privileged information may be in some sense relevant in

any lawsuit.’” Id. at ¶ 17, 419 P.3d at 575 (quoting In re Cty. of Erie, 546 F.3d 222,

229 (2d Cir. 2008)).

¶24   Accordingly, we have indicated that “to establish an implied waiver based

on the assertion of a claim or defense, a party must show that the client asserted a

claim or defense that depends on privileged information.” Id. at ¶ 18, 419 P.3d at

575. “To suggest otherwise would inappropriately allow a party to use as a sword

the privilege that is afforded him or her as a shield.” Id.

       C. Rademacher Did Not Impliedly Waive Her Privilege Here

¶25   Here, Greschler contends, and the magistrate and the district court found,

that Rademacher had placed privileged communications at issue and therefore

impliedly waived the attorney-client privilege by implicitly representing that she

had timely filed her claim. As the district court put it, “To defeat the affirmative

defense that her claim is time barred, Plaintiff necessarily contends that she did

not know she was damaged by Defendant’s alleged negligence until less than two

years before she filed suit. She has thus made her lack of knowledge a critical issue

at trial.” Although the timing of Rademacher’s knowledge of her injury may well




                                         11
be an issue in this case, for several reasons, we disagree that the potential relevance

of such information effectuated an implied waiver of the attorney-client privilege.

¶26   First, Rademacher did not assert any claim that focused or depended on

advice given by her attorney, as was required to establish an implied waiver of the

privilege here. See id. at ¶ 16, 419 P.3d at 575. She merely asserted a legal

malpractice claim against Greschler, and Greschler then raised a statute of

limitations defense.

¶27   Second, we are unpersuaded that Rademacher’s filing of her lawsuit close

to the expiration of the applicable statute of limitations placed at issue privileged

information that Rademacher may have received from her counsel. Greschler

contends that by filing her lawsuit when she did, Rademacher implicitly asserted

that her claim was timely, thereby placing at issue privileged communications that

might be relevant to undermine this implicit assertion. If Greschler were correct,

however, then any plaintiff would, as a matter of law, waive the attorney-client

privilege simply by filing a claim close to the expiration of the pertinent statute of

limitations. Greschler, however, cites no applicable authority supporting so broad

a proposition, and we have seen none.

¶28   Moreover, to the extent that Greschler is suggesting that Rademacher’s

allegedly delayed filing effected an implied waiver of the privilege by making

confidential communications potentially relevant, we reject this contention. As an

                                          12
initial matter, such a suggestion incorrectly conflates the concepts of waiver and

relevance. In addition, as noted above, we have previously made clear that the

mere fact that privileged information might become relevant in a lawsuit cannot

alone establish an implied waiver because if it did, then the privilege would lose

much of its protective force, given that privileged information might in some sense

be relevant in any lawsuit. See id. at ¶ 17, 419 P.3d at 575.

¶29   Third, we perceive nothing about Ettingoff’s May 1, 2015 letter that can be

construed as effectuating an express or implied waiver of the attorney-client

privilege. In his letter, Ettingoff expressed Rademacher’s dissatisfaction with

Greschler’s performance at the oral argument in the court of appeals, and he

voiced concern that Greschler’s lack of preparation “may very well lead to” the

reversal of the judgment that Rademacher had previously obtained. Nothing on

the face of this letter, however, indicated that Rademacher believed that she then

had a viable malpractice claim against Greschler. To the contrary, the letter

suggested Rademacher’s understanding that she had not yet suffered any injury

but had reason to fear that an adverse decision by the division might cause her

damage. Moreover, Ettingoff tellingly made no demand to settle any existing or

potential malpractice claim against Greschler. Rather, he offered only to settle

Greschler’s then-existing claim against Rademacher for outstanding attorney fees.

This was fully consistent with Rademacher’s position that Ettingoff’s role was

                                          13
limited to working on matters relating to her divorce proceeding and that Ettingoff

was merely seeking to get Rademacher’s financial affairs in order in connection

with that proceeding.

¶30   Finally, notwithstanding Greschler’s assertion to the contrary, the record

shows that he, not Rademacher, placed in issue when Rademacher knew or

reasonably should have known of her alleged injury, thereby causing the statute

of limitations to begin to run. Greschler asserted a statute of limitations defense

here, and he bore the burden of proving that defense. Crosby v. Am. Family Mut.

Ins. Co., 251 P.3d 1279, 1283 (Colo. App. 2010).     We have seen no authority

supporting Greschler’s suggestion that Rademacher impliedly waived her

attorney-client privilege merely by requiring Greschler to meet his burden of

proving the affirmative defense that he asserted, and Greschler cites no such

authority. Moreover, we cannot perceive how Greschler’s assertion of a statute of

limitations defense placed in issue Rademacher’s privileged communications. See

State Farm, ¶ 16, 419 P.3d at 575 (noting that a client impliedly waives the

attorney-client privilege when he or she—not the opposing party—asserts a claim

or defense focusing on advice given by the attorney, thereby placing the allegedly

privileged communications at issue).     If Greschler’s assertion of a statute of

limitations defense could be deemed to have placed Rademacher’s privileged

communications at issue, then the privilege again would lose much of its

                                        14
protective force because a defendant could always effectuate a waiver of the

plaintiff’s privilege merely by asserting a facially viable statute of limitations

defense. Greschler cites no applicable authority supporting such a proposition,

and again we have seen none.

¶31   In reaching the foregoing conclusions, we are not persuaded by Greschler’s

reliance on Mountain States Telephone & Telegraph Co. v. DiFede, 780 P.2d 533,

542–44 (Colo. 1989), and League, 374 N.W.2d at 855–57.

¶32   In Mountain States, 780 P.2d at 542–43, we concluded that the plaintiff had

impliedly waived the attorney-client privilege with respect to communications

that she had had with her counsel by expressly contending that she relied to her

detriment on statements made by opposing counsel, notwithstanding the fact that

she had obtained advice on the same matter from her own counsel. There, the

plaintiff challenged the validity of a separation agreement between her and her

ex-husband, arguing that her ex-husband’s attorney had fraudulently induced her

to sign the agreement by falsely representing that it was unenforceable at the time

it was signed. Id. at 538, 542–43. The plaintiff, however, had consulted with her

own counsel regarding the enforceability of this agreement before she signed it,

and the defendant thus contended that any reliance by the plaintiff on defense

counsel’s statement was unreasonable. Id. On these facts, we concluded that the

plaintiff had impliedly waived any privilege that she had had in her

                                        15
communications with her own counsel because her claim of justifiable reliance on

opposing counsel’s misstatement had placed those confidential communications,

which tended to undermine her reliance claim, at issue. Id. In this regard, we

found “particularly instructive” the Nebraska Supreme Court’s decision in League,

374 N.W.2d at 856, which, as noted above, the district court in this case also found

to be persuasive. Mountain States, 780 P.2d at 543.

¶33    In League, in order to avoid a statute of limitations defense asserted by the

defendant, the plaintiff alleged that the defendant had concealed the events and

transactions at issue, thereby precluding the plaintiff from asserting his claims

earlier.   League, 374 N.W.2d at 856.     The district court, however, admitted

testimony from the plaintiff’s former attorney that he had informed the plaintiff

years earlier regarding the transactions at issue and that the plaintiff had

considered but chose not to file suit. Id. at 852–53. The plaintiff argued that the

admission of this testimony violated the attorney-client privilege, but the

Nebraska Supreme Court disagreed, concluding that by alleging concealment, the

plaintiff had injected his knowledge (or lack thereof) of the transactions at issue.

Id. at 855–57. The court reasoned that the plaintiff could not “thrust his lack of

knowledge into the litigation as a foundation or condition necessary to sustain his

claim against [the defendant] while simultaneously retaining the lawyer-client

privilege to frustrate proof of knowledge negating the very foundation or

                                         16
condition necessary to prevail on the claim asserted against [the defendant].” Id.

at 856.

¶34      Mountain States and League are readily distinguishable from the case now

before us. In both of those cases, the plaintiffs expressly alleged that (1) the

defendant or defense counsel had misinformed the plaintiffs about pertinent facts

or had concealed information from the plaintiffs and (2) the misinformation or

concealed facts caused the plaintiffs to act or refrain from acting to protect their

rights. Thus, in both cases, the plaintiffs’ allegations directly raised questions

regarding what the plaintiffs knew and when they knew it, and the courts were

unwilling to allow the plaintiffs to assert justifiable reliance while at the same time

withholding privileged information that undermined such assertions.

¶35      Here, in contrast, Rademacher never alleged that either misinformation

provided by Greschler or information that he concealed caused any delay in filing

her lawsuit. Indeed, she made no express allegation placing her knowledge at

issue.    She simply filed her lawsuit, and when Greschler raised a statute of

limitations defense, she responded by arguing that her claim was timely based on

the fact that she had suffered no compensable injury until the division’s ruling that

her settlement agreement with the Beckers was void. For the reasons set forth

above, were we to agree that such facts established an implied waiver of the

attorney-client privilege, then the privilege would be waived any time a plaintiff

                                          17
filed a complaint close in time to the expiration of the applicable statute of

limitations and any time a defendant could viably assert that privileged

communications were possibly relevant to his or her defense. Such a conclusion,

however, would be inconsistent with our above-described case law and, in our

view, would stretch the doctrine of implied waivers of privilege too far.

                                 III. Conclusion

¶36   For the reasons set forth above, we conclude that Rademacher neither

asserted a claim or defense that focused or depended on privileged information

nor otherwise placed at issue allegedly privileged information when she filed her

malpractice action close to the expiration of the statute of limitations or when she

then contested Greschler’s statute of limitations defense. Accordingly, on the facts

presented here, we further conclude that Rademacher did not impliedly waive her

attorney-client privilege.

¶37   We therefore make our rule to show cause absolute.




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