Won an "extraordinary remedy" from the Colorado Supreme Court involving the law of implied waiver of the attorney-client privilege.

WTO attorneys won an "extraordinary remedy" from the Colorado Supreme Court in a case involving the law of implied waiver of attorney-client privilege. The opinion is important to all corporate litigants in Colorado, as it further develops the law on this critical issue.

WTO attorneys Jack Trigg, Evan Stephenson, and Marissa Ronk

A trial court had ruled in an insurance bad faith dispute that WTO's client had impliedly waived attorney-client privilege when it submitted an affidavit from its former counsel denying discovery misconduct. The trial court ruled that this placed the lawyer’s legal advice “in issue” and found a waiver of privilege.

In response, WTO filed a Colorado Appellate Rule 21 petition to the Colorado Supreme Court. Rule 21 allows the supreme court to overrule a trial court order that requires immediate correction. Fewer than 1% of Rule 21 petitions are granted most years.

In its opinion, the supreme court ruled the trial court had applied the wrong legal standard when it found an implied waiver of the privilege. The supreme court found that the affidavit put no legal advice “in issue” because it contained “only facts and does not assert (or even refer to) any claims or defenses.”

The ruling means that relevance does not equal discoverability, which is significant for corporate defendants. The opinion provides important protection to clients that submit attorney affidavits. When the issue of implied waiver of privilege arises in other jurisdictions, courts can look to Colorado for guidance.