Opinion
No. CV-03-0102370
March 26, 2004
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT
The plaintiffs, the law firm of Gould, Larson, Bennet, Wells McDonnell, P.C., and Helen Bennet, a former associate with the firm, are aggrieved by an order and decree of the Probate Court for the district of Westbrook, denying their motion for a protective order and motions to quash subpoenas. They have brought an appeal of the Probate Court's ruling to this court pursuant to General Statutes § 45a-186.
The facts surrounding this probate appeal are uncontested. The decedent, Edward Panico, obtained the assistance of the law firm in drafting his estate plan, and in February of 1993, he executed a will. In October of 2002, the decedent again contacted the law firm to discuss his existing will and estate plan. On October 7, 2002, Bennet met with the decedent in his home to provide the requested consultation. Shortly thereafter, the decedent met with another Connecticut attorney, Pat Labbadia. Neither of these meetings resulted in the drafting or execution of a new will. On October 22, 2002, a different attorney, Joseph Reda of New York, drafted a new will for the decedent in New York State. On October 31, 2002, the decedent died, an estate was subsequently opened in the Westbrook probate court, and a will contest ensued. During the course of the probate proceedings, Bennet was served with a subpoena seeking her testimony concerning her consultation with the decedent. The law firm also received a subpoena to produce records concerning Bennet's consultation with the decedent. The plaintiffs filed a motion for protective order and a motion to quash the subpoenas which, on August 6, 2003, the probate court, Helander, J., denied without prejudice. This appeal followed, and the plaintiffs have now moved for summary judgment.
"[T]he right to appeal from the decision of a Probate Court is statutorily conferred by [§ 45a-186] . . . [T]he absence of aggrievement, as required by that statute, is a defect that deprives the Superior Court of jurisdiction to entertain the appeal." (Internal quotation marks omitted.) Adolphson v. Weinstein, 66 Conn. App. 591, 595, 785 A.2d 275 (2001), cert. denied, 259 Conn. 921, 792 A.2d 853 (2002). The plaintiffs allege that they are aggrieved in that the order and decree of the probate court "purport to require the [plaintiffs] to reveal privileged attorney/client communications and documentation contrary to the rules of the courts of the State of Connecticut." This court thus has jurisdiction to hear the appeal and decide the plaintiffs' motion for summary judgment.
A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, CT Page 5077 567 A.2d 829 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 2004 U.S.Lexis 1861, 72 U.S.L.W. 3566 (March 8, 2004).
"The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn. App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
The plaintiffs contend that there is no genuine issue of fact, that the attorney-client privilege prohibits both Bennet's testimony and the law firm's disclosure of documents concerning any consultation with the decedent, and that they are therefore entitled to judgment as a matter of law. They argue that the consultation between Bennet and the decedent did not result in the execution of a will and that an exception to the attorney-client privilege for communications relating to the execution of wills does not apply.
The defendants counter that where there is a suit between the devisees under the decedent's will and others who, claim under it, the attorney-client privilege will not prevent the attorney from giving testimony, especially when the need for disclosure outweighs the potential chilling effect on the communication. The defendants contend that the close proximity in time between Bennet's consultation with the decedent and the execution of the decedent's will two weeks later constitutes a compelling reason to know the nature of their discussions. Specifically, the defendants argue that knowledge of the nature of the communication is necessary in order to determine whether there was undue influence on the decedent when he executed his will.
"[W]here legal advice of any kind is sought from a professional advisor in his [or her] capacity as such, the communications relating to that purpose, made in confidence by the client, is at [the client's instance permanently protected from disclosure by [the client] or by the legal advisor . . . The privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him [or her] to give sound and informed advice." (Citations omitted; internal quotation marks omitted.) Shew v. Freedom of Information Commission, 245 Conn. 149, 157, 714 A.2d 664 (1998). "As this court long has recognized, [i]t is obvious that professional assistance would be of little or no avail to the client, unless his legal adviser were 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." (Internal quotation marks omitted.) Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 15, 826 A.2d 1088 (2003).
It is undisputed that the consultation between Bennet and the decedent constituted confidential communications within the meaning of an attorney-client relationship. It is also undisputed that, following the decedent's consultation with Bennet, neither Bennet nor her law firm prepared the will that the decedent executed on October 22, 2002. What is disputed, however, is whether the communications between Bennet and the decedent are subject to any exception to the attorney-client privilege. Berlin v. United States, 524 U.S. 399, 406, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). Our Supreme Court recognized an exception to the continuation of the privilege in Doyle v. Reeves, 112 Conn. 521, 525, 152 A. 882 (1931). "[C]ommunications, by a client to the attorney who drafted his will, in respect to that document and transactions between them leading up to its execution are not privileged, after the client's death, in a suit between devisees under the will and heirs at law, or other parties who all claim under him. The principal reason is that the general rule is designed for the protection of the client, and it is deemed not for the interest of the testator, in a controversy between the parties all of whom claim under him, to have those declarations and transactions excluded which promote a proper fulfillment of his will." (Emphasis added.)
In their reasons of appeal, the plaintiffs allege that "[t]he contestants in the will dispute proported to inquire of the Plaintiffs concerning their advice to Edward Panico on matters which are matters of the attorney/client privileged communications, in that they seek to question the Plaintiffs and to review records of the [Plaintiffs'] files with respect to matters other than the Will prepared by the Plaintiffs and executed by the Decedent Edward Panico." (Reasons for Appeal, ¶ 6.) In their answer, the defendants "deny that the communication between the decedent and the Plaintiff-Appellees was subject to the attorney-client privilege." (Reply to Reasons For Appeal, ¶ 6.)
The exception to the attorney-client privilege has also been extended to "permit testimony from a decedent's attorney concerning the creation of an inter vivos trust when the decedent dies and there is a dispute among people who claim an interest in his former property." Morgan v. Pendleton, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0171903 (April 13, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 39, 40).
In those cases which have been found subject to the exception, the communications whose disclosure was sought were made to the attorney who drafted the documents that were executed by the decedent. Although the court in Doyle and Morgan do not explicitly state that the communications subject to the exception are limited solely to those from the drafting attorney whose documents were executed by the decedent, any other reading would unduly undermine the purposes of the attorney-client privilege. That 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, 449 U.S. 383, 389, 101 S.Ct 677, 66 L.Ed.2d 584 (1981). If, as the defendants suggest, the exception to the attorney-client privilege depends solely on whether there is a contest to determine who will be entitled to the decedent's property, independent of the attorney's role, the scope of the exception would be expanded well beyond its intended purpose, entitling parties to engage in fishing expeditions for a broad range of communications that were never meant for ears other than those of the client and the attorney. Moreover, the defendants' approach would stifle the fundamental purpose of the attorney-client privilege, the full and frank communication between a client and attorney unhampered by skepticism that confidences could be breached after death. See Blumenthal v. Kimber Mfg., Inc., supra, 265 Conn. 15 ("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").
The court, therefore, concludes that the exception to the attorney-client privilege in will contests is limited to communications between the decedent and the attorney who actually drafted the instruments that were ultimately executed by the decedent. The affidavits presented in connection with the present motion establish that the plaintiffs did not draft the will that was executed by the decedent on October 22, 2002. Based on these uncontested facts, the recognized exception to the attorney-client privilege for communications made to an attorney who drafted a decedent's will can not be extended to the present case. As a matter of law, therefore, the plaintiffs are entitled to judgment granting the protective order they seek and quashing the subpoenas. The plaintiffs' motion for summary judgment is therefore granted.
Jonathan E. Silbert, Judge