Opinion
DBDCV176023825S
06-14-2019
Ian MCINTYRE Individually, and as Custodian of the Douglas McIntyre Uniform Transfers to Minors Act Account v. Jannine CARBONARO et al.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
On this probate appeal appellee Jannine Carbonaro has moved for a protective order under P.B. § 13-5 to preclude discovery of certain communications between appellee and her attorney which she contends are protected by attorney-client privilege. Appellant Ian McIntyre argues that such communications are not privileged because appellee’s spouse was copied on the correspondence. For the reasons stated below, the motion for protective order is granted in part.
This probate appeal alleges that appellant, appellee’s former husband, mismanaged funds in certain accounts held for the benefit of their children in violation of the Uniform Transfer to Minors Act. Appellant has subpoenaed appellee’s current husband for deposition and demanded production of all emails between appellee and her counsel on which her husband was copied. Appellee has objected on the grounds of attorney-client privilege and argued that the privilege was not waived because her spouse was acting as her agent assisting her in the litigation.
Appellee also asserted spousal privilege, that the spouses had a joint interest in this matter and that the subpoena was intended to harass and intimidate appellee and her spouse. These arguments appeared to be abandoned at oral argument and were not considered as a basis for this decision.
In PSE Consulting, Inc. v. Frank Mercede and Sons, Inc., 267 Conn. 279, 329-30 (2004), the Supreme Court summarized the law of attorney-client privilege:" ‘[o]n numerous occasions we have reaffirmed the importance of the attorney-client privilege and have recognized the long-standing, strong public policy of protecting attorney-client communications ... 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 ... The privilege fosters full and frank communications between attorneys and their clients and thereby promote[s] the broader public interests in the observation of law and [the] administration of justice.’ ... We note further that ‘[a]lthough the existence of the privilege encourages the candor that is necessary for effective legal advice.’ ... the exercise of the privilege tends to prevent a full disclosure of the truth in court.’ ... Therefore, the privilege is strictly construed ... Not every communication between client and attorney, however, is protected by the attorney-client privilege. ‘As a general rule, [c]ommunications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice ...‘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.’ ... The burden of proving each element of the privilege, by a fair preponderance of the evidence, rests with ... the party seeking to assert the privilege." (Citations omitted).
In Olson v. Accessory Controls and Equipment Corp., 254 Conn. 145, 157 (2000), the Supreme Court discussed waiver of attorney-client privilege when the communication is made in the presence of a third party: "[m]oreover, although we have acknowledged that ‘statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality’; ... we have recognized that ‘[t]he presence of certain third parties ... who are agents or employees of an attorney or client, and who are necessary to the consultation, will not destroy the confidential nature of the communications.’ "
The exception to the third-party waiver rule applies to "agents or employees of an attorney or client ... who are necessary to the [legal] consultation ..." Harrington v. Freedom of Information Commission, 323 Conn. 1, 25 (2016). The Court understand "necessary" in this context to mean the third party’s participation to be helpful or useful or of assistance in connection with the legal consultation, not "indispensable," as appellant urged, provided such participation was under circumstances where there was a "justified expectation" confidentiality would be preserved. See State v. Egan, 37 Conn.App. 213, 217 (1995). See generally Metropolitan Life Ins. Co. v. Aetna Cas. & Sur. Co., 249 Conn. 36, 62-63 (1999) (insurer); Olson v. Accessory Controls and Equipment Corp., 54 Conn.App. 506, 522-23 (1999), aff’d 254 Conn. 145 (2000) (expert).
The concept of "agency" is flexible and covers just about any relationship in which a person agrees to act on behalf or at the behest of another and under his or her control as the Appellate Court recently recognized in Jolen, Inc. v. Brodie and Stone, LLC, 186 Conn.App. 516, 521 (2018): "[t]he court first addressed the issue of whether a principal-agent relationship existed between the parties. The court began by setting forth the well-established elements required to show the existence of such relationship under Connecticut law: (1) a manifestation by the principal that the agent will act for him, (2) acceptance by the agent of the undertaking, and (3) an understanding between the parties that the principal will be in control of the undertaking. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983). Regarding the standard by which courts determine whether these elements have been met, the court correctly noted that ‘the labels used by the parties in referring to their relationship are not determinative’ and that, therefore, ‘a court must look to the operative terms of their agreement or understanding.’" (Footnote omitted).
A spousal relationship, although confidential and protected by spousal privilege in certain instances not present here, see State v. Christian, 267 Conn. 710, 725 (2004), is not necessarily an agency relationship unless the principal-agency test is satisfied. Frequently, however, spouses are agents of their spouses who rely on them for advice and expertise in confidential consultations with counsel. There is often a justified expectation that the consulted spouse will maintain confidence of attorney-client communications to which he or she is privy and defer to the client-spouse whose interests are protected. Here, the evidence presented demonstrated that appellee did rely on her spouse’s support and expertise in her communications with counsel and he acted as her agent in connection therewith. Under the circumstances, appellee’s spouse’s participation in communications with her counsel did not waive any attorney-client privilege.
Plaintiff has not yet demonstrated that any of the subpoenaed documents are protected by attorney-client privilege. Not every communication between attorney and client is protected by attorney-client privilege, and the party seeking to assert the privilege has the burden of proving its elements by a fair preponderance of the evidence. See PSE Consulting, 267 Conn. at 330.
To the extent that any subpoenaed document is withheld on privilege grounds, that document must be included in a privilege log produced to appellant that identifies the document withheld by name or other identifier, date, subject matter, sender and recipient and sets forth the basis of the privilege claim; a redacted copy that discloses any unprivileged content shall be produced to appellant; the unredacted copy must be kept sequestered for in camera review, if necessary, if the parties are unable to resolve any dispute after they confer in good faith. At any deposition appellant shall be permitted to examine deponent as to the factual basis for any assertion of privilege.