Opinion
No. FA05-4003806S
October 26, 2006
MEMORANDUM OF DECISION RE ATTORNEY BROWN'S MOTION TO WITHDRAW APPEARANCE
Presently, the parties are involved in a fully contested dissolution of their marriage with a primary issue being the custody of their minor children. The case has been referred to the Regional Family Trial Docket for trial.
On September 1, 2006, the plaintiff tiled an appearance in lieu of his counsel of record, Attorney William Brown. Thereafter, on or about September 8, 2006, the pro se plaintiff filed two motions: a Motion to Reinstate Appearance and an Objection to Pro Se Appearance. Essentially the plaintiff wanted the court to reinstate the appearance of Attorney Brown and allow the plaintiff to vacate or withdraw his pro se appearance. The court directed all parties and counsel of record, including Attorney Brown, to appear before the court on September 13, 2006 so as to hear argument on the plaintiff's motion and objection. At that hearing, the plaintiff represented that it was not so much his wish that Attorney Brown represent him, as it was his concern that he would have to proceed to trial without an attorney. Having been assured that his trial dates would be continued so as to allow him time to secure other counsel, the plaintiff reaffirmed his pro se appearance and his consent that Attorney Brown no longer represented him.
Attorney Brown then presented the court with a Motion to Withdraw his Appearance and represented to the court that he felt he had an ethical obligation to file his motion and have it acted upon by the court notwithstanding the fact that the plaintiff had agreed to represent himself . . . Attorney Brown further requested that his motion be accepted under seal and not be released to anyone other than opposing counsel. The plaintiff requested that Attorney Brown's motion be sealed as to everyone, including the trial court. Michael Fasano, attorney for the defendant, requested that the motion be entirely unsealed.
The court has four options: (1) grant the withdrawal motion under complete seal; (2) grant the withdrawal motion, seal it, but allow the other party/attorney in the divorce matter to see it; (3) grant the withdrawal motion under seal, but allow the divorce trial court and other party/attorney to see it; or (4) grant the withdrawal motion and entirely unseal it.
Practice Book § 11-20A(c) outlines the procedure a court must follow to seal documents. That section provides in relevant part: "Upon written motion of any party . . . the judicial authority may order that files, affidavits, documents, or other materials . . . be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order."
Practice Book § 11-20A(d) provides in relevant part: "In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order. It any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record. The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority . . ."
The Appellate Court examined Practice Book § 11-20A for the first time in Vargas v. Doe, 96 Conn.App. 399, 900 A.2d 525 (2006). In Vargas, the court stated that "the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public's interest in open judicial proceedings." Vargas v. Doe, supra, 96 Conn.App. 406. (Listing situations where statutes specifically require or allow the sealing of documents.) "For situations that do not fall within these specified exceptions and yet in which a limit on disclosure is requested, the trial court must consider whether a substantial privacy interest exists to override the public's interest in open judicial proceedings." Vargas v. Doe, supra, 96 Conn.App. 407.
Although Vargas focused on the subsections of Practice Book § 11-20A dealing with the use of pseudonyms, its analysis is relevant because the process the court should follow in determining whether to allow the use of pseudonyms and whether to seal documents is virtually the same. In analyzing this process, the court stated that "the rules of practice provide an intricate procedure that the court must follow prior to permitting the use of pseudonyms in any given case." Vargas v. Doe, supra, 96 Conn.App. 413. The court found that the trial "court failed to determine the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings and to articulate any factual findings that would support such a conclusion." Id., 412. Thus, the court vacated the order allowing the use of pseudonyms. Id., 414.
The same standard applies to sealing documents. Practice Book § 11-20A(d) requires that "the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order."
The issue of attorney-client privilege has been raised "As a general rule, [c]ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., 254 Conn. 145, 157, 757 A.2d 14 (2000). "Connecticut has a long-standing, strong public policy of protecting attorney-client communications . . . 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." (Citation omitted; internal quotation marks omitted.) Gould, Larson, Bennet, Wells McDonnell, P.C. v. Panico, 273 Conn. 315, 321-22, 869 A.2d. 653 (2005). Therefore, communications between the plaintiff and Attorney Brown are protected.
If the court accepts Attorney Brown's withdrawal under complete seal, the attorney-client privilege between Attorney Brown and his client is not implicated. However, doing so goes against the policy of avoiding sealing documents whenever possible. "The presumption of openness of court proceedings . . . is a fundamental principle of our judicial system." Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65, 818 A.2d 14 (2003); Practice Book § 11-20A(a) ("Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.") The commentary of Practice Book § 11-20A provides: "The public and press enjoy a right of access to attend trials in civil as well as criminal cases . . . The guarantee of open public proceedings in civil trials applies as well to the sealing of court documents . . . Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070-71 (3d Cir. 1984)." (Citation omitted.)
Accepting the motion for withdrawal under partial seal, or without seal, is not likely to impact attorney-client privilege. The main reason the plaintiff wants the pleading sealed is because the inference that he was untruthful to the court could be used against him in the divorce trial. However, if the motion is not sealed, he will still be protected by the attorney-client privilege, and the defendant would have to find an exception to this privilege in order to get any further information about the alleged untruthful representation.
Presumably, the only way the defendant could get to the details of the communications between Attorney Brown and his client would be if those communications fall under the civil or crime fraud exceptions to attorney-client privilege. "[T]he crime-fraud exception permits abrogation of the attorney-client privilege solely upon a determination by the trial court that there is probable cause to believe that the privileged communications were made with the intent to perpetrate a civil fraud and that the communications were made in furtherance of that fraud." Olson v. Accessory Controls Equipment Corp., supra, 254 Conn. 174. Under the civil fraud exception, the party seeking disclosure of privileged materials must establish both that there is probable cause to believe that the client intended to perpetrate a fraud; and that "the communications sought in discovery were made in furtherance of the fraud." Olson v. Accessory Controls Equipment Corp., supra, 254 Conn. 174-76. "The reason for the civil fraud exception is not that disclosure of privileged materials is necessary for the resolution of such claims; it is that the justification for the attorney-client privilege simply does not apply in cases in which a communication was made for an illegal purpose." Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 39-40, 867 A.2d 1 (2005).
The defendant would have to provide evidence beyond what is contained in the withdrawal motion in order for the civil or crime fraud exceptions to apply. "Mere relevance is insufficient [to establish the civil fraud exception]; there must be a showing that the communications at issue were made with an intent to further an unlawful act." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., supra, 254 Conn. 176; see also Blumenthal v. Kimber Mfg., Inc., 265 Conn. 1, 20, 826 A.2d 1088 (2003) . . ." [I]n order for the crime exception to lie, the party seeking to abrogate the privilege must offer reasonable evidence of . . . guilty intent. So too, the fraud exception requires some quantum of proof by the party seeking to pierce the privilege. [I]t would be absurd to say that the privilege could be [eliminated] merely by making a charge of fraud." (Internal quotation marks omitted.) Olson v. Accessory Controls Equipment Corp., supra, 254 Conn. 172.
The general language of the motion for withdrawal provides no indication of what the plaintiff was untruthful about, nor does it offer any evidence of intent to perpetuate a fraud, or provide probable cause to believe that communications by the plaintiff to Attorney Brown were in furtherance of a fraud. Given the general language of the motion for withdrawal, the court is hard pressed to articulate an overriding interest that is protected by sealing the document. This is especially true because the vague language used in the motion only provides a party seeking to pierce the attorney-client privilege with the ability to make a mere assertion of fraud, and, as outlined above, this is not enough to defeat the privilege. Therefore, the language of the withdrawal motion alone does not allow the opposing party to pierce the attorney-client privilege between the plaintiff and Attorney Brown. As a practical matter, the content of the motion doesn't reveal much more than what is apparent to everyone by the course of these proceedings to date. In order to effect his ethical obligation to the court, Attorney Brown felt required to press his motion to withdraw his appearance notwithstanding the fact that the plaintiff consented to the withdrawal of his appearance. These circumstances are almost as telling as the language in Attorney Brown's motion.
The court was directed to the case of Matza v. Matza, 226 Conn. 166, 627 A.2d 414 (1993). In that case, the withdrawing attorney submitted a detailed motion for withdrawal. The defendant/former client argued that the motion should be completely sealed because it contained privileged material. Matza v. Matza, supra, 266 Conn. 171. The court in Matza, held that "an evidentiary hearing on an attorney's motion to withdraw filed during the trial is not constitutionally required if the attorney reasonably believes that the continued representation of the client will require a breach of the Rules of Professional Conduct." Id., 174-75. "Although recognizing that the court may wish an explanation from the attorney for the withdrawal, the official comments suggest that the lawyer's statement that professional considerations require termination of the representation ordinarily should be accepted as sufficient." (Internal quotation marks omitted.) Id., 180. The other two holdings in Matza were that the trial court did not draw an adverse inference from the defendant's failure to testify, and that the trial court was correct in refusing to grant the defendant's motion for a mistrial following the granting of the defendant's counsel's motion to withdraw. Matza v. Matza, supra, 266 Conn. 186-87, 191. Thus, Matza, does not directly address the issue of whether a court should seal, and if so to what extent, an attorney's motion for withdrawal.
Attorney Brown's motion presents to the court his belief that the plaintiff has not been truthful with the court and, as a result, the relationship with his client has broken down. This belief does not automatically translate into a finding that the plaintiff has not been truthful with the court. In fact, nothing has been presented to the court outside of this motion to base such a finding. It does, however, provide the court with a basis to believe that Attorney Brown should no longer have the responsibility of representing the plaintiff.
Finally, the issues presented by this case are most consequential. The custody and welfare of the parties' two minor children are hotly contested. The trial court will be entrusted with the responsibility of making findings and entering orders affecting not only the individual parties but also to protect the best interests of the children. That court deserves to know whatever facts or events that have occurred that could possibly affect those issues.
In consideration of the foregoing, the court does hereby grant Attorney Brown's Motion to Withdraw his Appearance and does order it unsealed. This court specifically finds that a substantial privacy interest does not exist to override the public's interest in these judicial proceedings.
The court considers the plaintiff's motions withdrawn as he has consented to Attorney Brown's motion and has represented to the court that he no longer wishes that Attorney Brown represent him.