Attorney-client privilege in Connecticut
The Connecticut Supreme Court has recently reaffirmed the importance of the attorney-client privilege
Attorney-client privilege in ConnecticutThe Connecticut Supreme Court has recently reaffirmed the importance of the attorney-client privilege. Metropolitan Life Ins. Co. v. Aetna Casualty and Surety Co., et al., 249 Conn. 36 (1999); Shew v. Freedom of Information Commission, 245 Conn. 149, 162-163 (1998) (attorney-client privilege invoked when confidential communication between client and attorney is inextricably linked to giving of legal advice).
Connecticut has a long-standing, strong public policy of protecting attorney-client communications. See, e.g., Doyle v. Reeves, 112 Conn. 521, 523 (1931) (quoting common-law rule embodied in 5 J. Wigmore, Evidence [2d ed. 1923] ? 2292. This privilege was designed, in large part, to encourage full disclosure by a client to his or her attorney so as to facilitate effective legal representation. State v. Cascone, 195 Conn. 183, 188 (1985).
"It is important not to weaken the privilege with various exceptions because, as the United States Supreme Court has explained, even the threat of disclosure would have a detrimental effect on attorneys' ability to advocate for their clients while preserving their ethical duty of confidentiality. Hickman v. Taylor, 329 U.S. 495 (1947) (where threat of disclosure, 'inefficiency, unfairness, and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial ... [causing] the interests of the clients and the cause of justice [to] be poorly served.')" Metropolitan Life, id.
In Connecticut, the attorney-client privilege protects both the confidential giving of professional advice by an attorney acting in the capacity of a legal advisor to those who can act on it, as well as the giving of information to the lawyer to enable counsel to give sound and informed advice. Shew v. Freedom of Information Commission, 245 Conn. 149 (1998), citing Upjohn Co. v. United States, 449 U.S. 383 (1981). It is undisputed that the privilege was created "to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observation of law and administration of justice." Upjohn Co. v. United States, supra, at 389.
Exceptions to the attorney-client privilege should be made only when the reason for disclosure outweighs the potential chilling of essential communications. "It is obvious that professional assistance would be of little or no avail to the client, unless his legal advisor was put in possession of all the facts relating to the subject matter of inquiry or litigation, which, in the indulgence of the fullest confidence, the client could communicate. And it is equally obvious that there would be an end to all confidence between the client and the attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession." Goddard v. Gardner, 28 Conn. 172, 174 (1859).
The contours of the "at issue" exception to the attorney-client privilege in Connecticut was set forth for the first time in Metropolitan Life Ins. Co., supra. If the relevant documents are put "at issue" it will mandate their production pursuant to the "at issue" exception to the attorney-client privilege. The "at issue," or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action. Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408, 412-415 (D. Del. 1992)
(applying Connecticut law). Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship. In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice. If the information is actually required for a truthful resolution of the issue on which the party has raised ... the party must either waive the attorney-client privilege as to that information or it should be prevented from using the privileged information to establish the elements of the case. Remington Arms, supra.
Liberal waiver rules have been criticized on the grounds that they supposedly "increase litigation costs and judicial time spent on discovery disputes, favor the wealthiest litigants, undermine the values served by the privilege rules, and vary according to the identity of the litigants and their purported need for privileged information." Remington Arms, supra.
Continuation of the attorney-client privilege after death of the clientThe attorney-client privilege continues after the death of the client. Peyton v. Werhane, 126 Conn. 382, 390 (1940) (holding "such communications are privileged and their production cannot be compelled from the attorney after the decease of the client"); see also Swidler & Berlin v. United States, 524 U.S. 399, 406 (1998) ("The general rule is that the attorney-client privilege continues after death") (cast of characters included first lady Hillary Clinton, special prosecutor Kenneth Starr, and Vincent Foster, a White House lawyer - and former law partner of Hillary Clinton - who committed suicide in the middle of an investigation of supposed wrongdoing at the White House).
Attorney-client privilege if communications are in the presence of a third partyThe attorney-client privilege does not extend to communications made in the presence of third parties because there usually is no reasonable expectation of privacy. However, courts recognize the existence of the privilege when attorney-client communications have been made in the presence of the following third parties: (1) agents or employees of the attorney or client, who are necessary for the consultation, State v. Gordon, 197 Conn. 413 (1985); State v. Cascone, 195 Conn. 183 (1985); (2) agents, interpreters and clerks, Goddard v. Gardner, 28 Conn. 172 (1859); (3) a psychiatric expert retained by the criminal defendant or by defense counsel, State v. Toste, 178 Conn. 626 (1979); and (4) a social worker to whom the defendant was sent by his attorney. State v. Egan, 37 Conn. App. 213 (1995). The privilege also extended to communications - oral and written - between counsel for a company and an environmental consulting firm retained by counsel to assist the company in responding to a D.E.P. order, Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145 (2000).
"When two or more people consult an attorney together on a matter of joint interest ... their communications [are] privileged as to the outside world, though not as to each other in a later controversy between themselves. State v. Cascone, 195 Conn.183 (1985); see also C. Tait & J. LaPlante, Connecticut Evidence (2d ed. 1988) ? 12.5.1, p. 442. Similarly, if a client calls into a conference with an attorney one of the client's agents, and matters are discussed which bear on the agent's rights against the client, those communications would not be privileged. C. McCormick, Evidence (3d ed. 1984), p. 219. The rationale in both instances is that the individuals involved did not intend to keep their communications secret from one another." Pagano v. Ippolitti, 245 Conn. 640 (1998).
See also, Applicability of Attorney-Client Privilege to Communications Made in the Presence of or Solely to or by Third Person, 14 A.L.R.4th 594.
Connecticut Code of EvidenceThe Connecticut Code of Evidence became effective January 1, 2000. Privileges are governed by Article V. Section 5-1 states: "Except as otherwise required by the constitution of the United States, the constitution of this state, the General Statutes or the Practice Book, privileges shall be governed by the principles of the common law." The commentary to Section 1-2 clarifies that although the Code follows the general format and sometimes the language of the Federal Rules of Evidence, the Code does not adopt the Federal Rules of Evidence or cases interpreting those rules. Although the Federal Rules of Evidence was influential in shaping Connecticut evidentiary rules, they are not binding in Connecticut.