Bankr. L. Rep. P 70,621alan Schaeffer, et al., Plaintiffs-appellees, v. David J. Wagner and Wagner & Waller, a Colorado Partnership,defendants-appellants, 765 F.2d 133 (10th Cir. 1985)

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U.S. Court of Appeals for the Tenth Circuit - 765 F.2d 133 (10th Cir. 1985) June 19, 1985

John D. Phillips, Jr. and Daniel W. Pinkston of Hall & Evans, Denver, Colo., for defendants-appellants.

Paul G. Bursiek, Jr., Boulder, Colo., for plaintiffs-appellees.

Before BARRETT and McWILLIAMS, Circuit Judges, and KERR* , District Judge.

McWILLIAMS, Circuit Judge.

The question here is whether the trustee of Maxwell Energy Equipment Co., a Colorado corporation in bankruptcy, has the power to waive the debtor-corporation's attorney-client privilege with respect to communications between the corporation and its attorneys occurring before the bankruptcy proceedings and the appointment of the trustee. United States Magistrate Hilbert Schauer held that the trustee had that power. United States District Judge John P. Moore denied a motion to reconsider the magistrate's ruling. This appeal followed. We affirm.

The precise question posed by this appeal was recently addressed by the United States Supreme Court in Commodity Futures Trading Commission v. Weintraub, --- U.S. ----, 105 S. Ct. 1986, 85 L. Ed. 2d 372 (1985). In reversing the Seventh Circuit, a unanimous court, with Justice Powell taking no part in the consideration or decision of the case, held that the trustee of a corporation in bankruptcy has the power to waive the corporation's attorney-client relationship with respect to pre-bankruptcy communications.

Judgment affirmed.


Honorable Ewing T. Kerr, United States District Judge for the District of Wyoming, sitting by designation