Opinion
FBTCV166057520S
03-17-2017
Christina Fensore v. Michael Lyons
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Edward T. Krumeich, J.
Plaintiff Christina Fensore has moved for in camera review of certain documents claimed to be privileged in the privilege log submitted by defendant Michael Lyons. Redacted copies of the documents have already been produced. Having reviewed unredacted copies of those four documents, the Court rules that the redactions are protected by attorney-client privilege that has not been waived by defendant.
Defendant initially had asserted in his privilege log eighteen documents were privileged, but now only the four documents described herein have been withheld or produced in redacted form on the ground of attorney-client privilege.
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 . . . 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." . . . 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 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. 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 . . ." Metropolitan Life Ins. Co. v. Aetna Casualty and Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999) (citations omitted).
The first email dated December 22, 2015, was from defendant to the attorney representing the Norwalk Board of Education, Tom Mooney (" Mooney"), later forwarded to Corporation Counsel of the City of Norwalk (the " City"), Jeff Spahr (" Spahr"). Dr. Steven Adamowski (" Adamowski"), the Norwalk Public School Superintendent, was copied on the email. At the time the email was sent defendant was a member of the Norwalk School Board. This lawsuit was not yet filed, but plaintiff was threatening suit. The email was sent to inform Mooney, the attorney representing the board, about facts relating to the defamation claim and defendant's proposed defense if suit were brought.
The second redacted email was from Mooney to defendant dated December 23, 2015, written in response to defendant's email the previous day, provided legal advice about the claim and defense, discussed defense strategy and indemnification of defendant by the City under C.G.S. § 10-235. The only other recipient of that email was an administrative assistant from Mooney's law firm. This email was later forwarded to Spahr.
The third redacted email was sent by defendant to Mooney, Spahr and Adamowski on May 27, 2016, after this lawsuit was commenced, related to his planned defense and requested indemnification.
The fourth redacted email was sent by Spahr on May 28, 2016, to Mooney, with copies to defendant and Adamowski, later sent to Craig Schmidt, the City's Risk Manager, and Scott Stevens, the agent for the City's insurance carrier. The redactions were of two brief sentences in which Spahr commented about the claim.
" As a general rule, communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice." PSE Consulting, Inc. v. Frank Mercede and Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004). The privilege extends to communications from a client to an attorney to enable counsel to give sound and informed advice. Metropolitan Life Ins., 249 Conn. at 52.
All the redacted emails were communications by or with attorneys and concerned the giving of legal advice and litigation strategy concerning matters of common interest, defending against claims asserted by plaintiff. At the time the communications were made, the attorneys, Mooney and Spahr, represented the City and the Norwalk Board of Education as their clients, both of which had potential litigation risk. Defendant was a member of the school board and Adamowski was Superintendent of the Norwalk public schools. Both would be de facto clients as agents of the City and board in their official capacities entitled to seek counsel from the attorneys in confidential communications to which the attorney client privilege would attach. See Shew v. Freedom of Information Comm'n, 245 Conn. 149, 714 A.2d 664 (2006) (attorney client privilege protects confidential communications with counsel by municipal agents).
" . . . [W]e conclude that communications to an attorney for a public agency are protected from disclosure by privilege if the following conditions are met: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence." Shew, 714 A.2d at 670-71. All these factors were present here in defendant's communications with counsel and counsel's communications with defendant about plaintiff's claims in the redacted emails.
Although defendant was not an individual client of Mooney and Spahr, it would not be practical to separate communications in his official and individual capacities under the circumstances. Further, defendant's personal interests and the interests of the City as his indemnitor were conjoined; defendant and the City had a common interest in defending against the plaintiff's claims, which suffices to preserve the privilege regardless of whether or not an action is pending to which they are parties. See Hubbell v. Ratcliffe, 2010 WL 4885631 *7 (Conn.Super. 2010) [50 Conn.L.Rptr. 856, ]. For privilege to attach the communication must be confidential. See PSE, 267 Conn. at 330. The privilege may be lost, however, if the communication is shared by the client with a third party: " [s]tatements made in the presence of a third party, on the other hand, are usually not privileged because there is then no reasonable expectation of confidentiality." Id. at 330-31 quoting Ullmann v. State, 230 Conn. 698, 711, 647 A.2d 324 (2002). See Harp v. King, 266 Conn. 747, 769, 835 A.2d 953 (2003) (even inadvertent disclosure may waive privilege). Waiver may be express or by implication from the circumstances. See e.g., Sharon Motor Lodge, Inc. v. Tai, 2006 WL 697589 *5 (Conn.Super. 2006) [40 Conn.L.Rptr. 852, ]. As noted above, privilege is not waived by disclosure to persons who share a common interest in the defense of the claims, even if there is no action pending or the persons with a common interest are not parties to the action. See Hubbell, , 2010 WL 4885631 *7.
There is no reason to believe that the City, the Board of Education or defendant ever waived attorney-client privilege over the redacted documents. The privilege was not lost when the documents were later provided to Schmidt, the City's Risk Manager, and Stevens, the agent of the City's insurer, both of whom shared a common interest in defeating plaintiff's claim. See State v. Gordon, 197 Conn. 413, 424, 504 A.2d 1020 (1985), and United States v. United Techs Corp., 979 F.Supp. 108, 111 (D.Conn. 1997). See also Metropolitan Life Ins., 249 Conn. at 62 (insurer and insured have common interest in defending claim). Absent waiver, attorney-client privilege affords permanent protection to such communications. See Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 10, 826 A.2d 1088 (2003).
" [W]here legal advice of any kind is sought from a professional legal adviser in his [or her] capacity as such, the communications relating to that purpose, made in confidence by the client, are at [the client's] instance permanently protected from disclosure by [the client] or by the legal adviser . . ." Blumenthal, 265 Conn. at 10 (emphasis added).
All the emails redacted by defendant are protected by attorney-client privilege. Even the email dated December 22, 2015, that lists links that would support his defense would be inextricably linked to the giving of legal advice. Therefore, defendant has satisfied his burden of proof that the portions of the documents redacted by defense counsel are not discoverable. Blumenthal, 265 Conn. at 11.
" Not every communication between attorney and client falls within the privilege. A communication from attorney to client solely regarding a matter of fact would not ordinarily be privileged, unless it were shown to be inextricably linked to the giving of legal advice." Ullmann, 230 Conn. at 713.