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Drafted a winning amicus brief for the Colorado Defense Lawyers Association in an alleged medical malpractice case against a chiropractor.

Fox v. Alfini et al., 2018 CO 94 (Colorado Supreme Court)
Date: 12.18.18

WTO attorneys drafted and filed an amicus curiae brief for the Colorado Defense Lawyers Association in this case that establishes, for the first time, that the criteria must be objective and reasonable when determining whether a conversation between an attorney and a client that involves a third party is protected by the attorney-client privilege.

In this case, the plaintiff suffered a stroke during a chiropractic appointment. She sued the chiropractor and his practice group. The plaintiff’s parents attended and participated in her initial consultation with counsel about her malpractice claim—a portion of which was recorded.

During discovery, the defendants moved to compel production of the recording. The plaintiff refused, claiming that her parents’ presence was necessary to the consultation due to her diminished mental capacity from her stroke, and that the conversation was therefore protected by the attorney-client privilege.

In response, the defendants submitted the plaintiff’s social media posts from around the time of her consultation—in which she indicated that her symptoms “seem to have disappeared”—as evidence that her parents’ presence was not necessary to the consultation. The trial court agreed with the defendants and ordered the plaintiff to produce the recording. The plaintiff filed a petition for rule to show cause with the Colorado Supreme Court.    

The Colorado Supreme Court agreed with the trial court and denied the plaintiff’s petition. For the first time, the Court determined that the involvement of a third party in an attorney-client communication waives privilege unless the third party is reasonably necessary to assist in the representation. Not only did the Court establish a new rule to determine the circumstances under which a third party may be deemed necessary to a consultation, and therefore protected by the attorney-client privilege, but it also firmly established that the privilege may not be invoked retroactively as a cloak to withhold relevant facts. 

In a concurring opinion, Justice Hood highlighted that the work-product doctrine has a higher bar for waiver (and therefore would likely have protected the recordings from disclosure), but explained that the plaintiff did not properly assert the doctrine before the trial court.


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