Opinion
No. CV06-5001439 S
August 2, 2007
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTION TO QUASH #110
On September 5, 2006, the plaintiffs, Edward J. Tuccio and Tuccio Development, Inc., commenced this action for legal malpractice against the defendant, attorney Lawrence Lapine. In the revised complaint, the plaintiffs allege that the defendant represented the plaintiffs in several matters until at least January 17, 2004, and that:
5. During the said time, the defendant abandoned work on litigation in which he represented the plaintiffs, that is, civil actions entitled Carl H. Lecher v. Tuccio Development, Inc., and Edward Tuccio and Tuccio Development, Inc., and Edward Tuccio v. Paul S. McNamara, Donnelly, McNamara Gustafson, P.C., and Carl H. Lecher because the plaintiffs declined to accept a settlement proposal.
6. During the said time, the defendant failed to disclose to the plaintiff Edward Tuccio an impending arrest of the plaintiff despite a duty to do so.
7. During the said time, the defendant improperly and without authorization disclosed evidence to opposing counsel which was used to the plaintiffs' disadvantage during trial in this court in December 2003. Upon information and belief, the said evidence consisted of bills and invoices from Frank Fowler, maps and documents from one Garamella.
On March 29, 2007, the keeper of records for John Williams Associates, LLC was served with a subpoena duces tecum commanding his or her appearance and the production of documents for a deposition scheduled for April 17, 2007. On April 10, 2007, the plaintiffs filed a motion to quash and for a protective order as to the subpoena duces tecum on behalf of the plaintiffs' present counsel, attorney John Williams (Williams). In their motion the plaintiffs argue that the materials sought by the subpoena are protected by the attorney-client privilege and that the subpoena is overly broad. On May 11, 2007, Lapine filed a memorandum of law in opposition to the motion. Oral argument was heard at the short calendar on June 4, 2007.
The subpoena sought the following: "Any and all documents in your possession regarding and arising out of your legal representation of Edward Tuccio and/or Tuccio Development, Inc. in two actions entitled Lecher v. Tuccio Development, Inc., docket number CV03-0348074S and Tuccio Development, Inc. v. Donnelly, McNamara Gustafson, P.C. et al., docket number CV-01-0343253S, including but not limited to copies of all pleadings, and/or court documents, discovery compliance, correspondence, notes, journals, memos, electronically stored data and e-mails, depositions or court transcripts, and any and all other documents including the file jackets and folders."
Williams represented the plaintiffs as the successor attorney in the litigation constituting the basis of Lapine's alleged malpractice. Although Williams continues to represent the plaintiffs, the subpoena only seeks information relative to the litigation referred to in the complaint and does not apply to any confidential information created for the present case.
The trial court is vested with the inherent authority to moderate the discovery process by imposing protective orders under appropriate circumstances. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221-22 n. 59, 884 A.2d 981 (2005). The party seeking a protective order under Practice Book § 13-5 bears the burden of establishing the contemplated "good cause." See Babcock v. Bridgeport Hospital, 251 Conn. 790, 848-49, 742 A.2d 322 (1999). Moreover, it has long been "recognized that the granting or denial of a discovery request rests in the sound discretion of the [trial] court." Barry v. Quality Steel Products, Inc., 280 Conn. 1, 16-17, 905 A.2d 55 (2006); Standard Tallow Corp. v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). "That discretion applies to decisions concerning whether the information is material, privileged, substantially more available to the disclosing party, or within the disclosing party's knowledge, possession or power." Brown v. Housing Authority, 23 Conn.App. 624, 626-27, 583 A.2d 643 (1990). In ruling on discovery matters, including motions to quash deposition notices and subpoenas, the court is obligated to take a reasoned and logical approach to the relevant contest between the parties. See, e.g., Blumenthal v. Kimber Mfg., 265 Conn. 1, 7-8, 826 A.2d 1088 (2003). The plaintiffs move to quash the subpoena duces tecum served on attorney Williams on the ground that the documents sought by the defendant are subject to the attorney-client privilege and, thus, are unavailable for production in any matter. In response, the defendant counters that the plaintiffs have failed to demonstrate good cause for a protective order as they have relied instead on conclusory statements that the materials are protected by the attorney-client privilege. He further argues the plaintiffs have waived the privilege by bringing the present lawsuit against the defendant, which directly places at issue the relevancy and materiality of the work and actions of attorney Williams in his subsequent representation of the defendant's former clients. The defendant adds that the information regarding such work and actions in the underlying cases is integral to the resolution of the claims of professional negligence pending against him.
The plaintiffs have provided the court with no specific legal authority in support of this proposition.
"[T]he attorney-client 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 . . ." (Internal quotation marks omitted.) Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 38-39, 867 A.2d 1 (2005).
"[T]he attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue . . . [B]ecause of the important public policy considerations that necessitated the creation of the attorney-client privilege [however], 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 . . . 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." (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 39.
In addition, the attorney-client privilege is waived where the representation of a former attorney is integral to the resolution of a client's present claim. Cox v. Burdick, 98 Conn.App. 167, 173 n. 4, 907 A.2d 1282, cert. denied, 280 Conn. 951, 912 A.2d 482 (2006). In Cox, the defendant sought to open a stipulated judgment to convey a piece of property to the plaintiff claiming that she did not have the proper mental capacity to sign the stipulated agreement and that her attorney had forced her to sign the agreement under duress. Id., 169. At the hearing on the issue, the plaintiff offered the testimony of the defendant's attorney, who invoked the attorney-client privilege. Id., 170-71. In finding that the trial court properly ruled that the attorney-client privilege did not apply at the hearing, the Appellate Court noted: "The defendant attempts to substantiate her claim with testimony that [her attorney] did something wrong, yet asserts the attorney-client privilege to deny the plaintiff the opportunity to ascertain the credibility of her account or to present contrary evidence. Because the defendant's claim cannot be resolved without examining her relationship with [her attorney], the court properly determined that the attorney-client privilege had been waived." Id., 173.
Other Superior Courts have also addressed when and to what degree the attorney-client privilege can be waived when the attorney's representation is at issue in legal malpractice claims. Shedrick v. Trantolo Trantolo, Superior Court, judicial district Middlesex, Docket No. CV 06 4000834 (June 9, 2005, Aurigemma, J.) (39 Conn. L. Rptr. 517) (held where representation involved co-counsel, the privilege had been waived in regards to all communications that occurred concurrently with joint representation); Whitaker v. Maddox, Superior Court, judicial district of Fairfield, Docket No. CV 00 0371896 (May 8, 2002, Gallagher, J.) (32 Conn. L. Rptr. 148) (the attorney-client privilege was not waived where the information sought by the defendants was for the purposes of buttressing a special defense). Whitaker is distinguishable from the present case as it involved information put at issue by the defendants through a special defense, and the information was found not to be crucial since the defendants could ably defend themselves without it.
Turning to the present case, the court agrees with the defendant that the plaintiffs waived the attorney-client privilege with respect to all attorneys working on the underlying action when they filed the present revised complaint. In paragraph five of the revised complaint, the plaintiffs allege that "the defendant abandoned work on litigation in which he represented the plaintiffs . . . because the plaintiffs declined to accept a settlement proposal." In paragraph seven, they further allege that "the defendant improperly and without authorization disclosed evidence to opposing counsel which was used to the plaintiffs' disadvantage during trial in this court in December 2003." For the defendant to fully discover what effect his own work and information had on the subsequent litigations conducted by Williams (whether it be positive or deleterious), access to Williams' records must be provided. The information in such records would be probative of what efforts were made to prevent the introduction of the evidence the plaintiffs claimed was improperly disclosed at trial, what actions were taken in preparation of trial, what settlement offers were made subsequent to the defendant's representation of the plaintiff, what judgments were entered in the litigation matters, what advice was offered by Williams and whether it was consistent or inconsistent with any previous advice offered by the defendant, the nature of the communications relative to the underlying matters between Williams and the plaintiffs about the defendant's representation of them, and any documentation regarding the plaintiffs' claims and demands in the underlying litigation.
At oral argument, plaintiffs conceded that the information in the files was relevant to the defendant's ability to prepare a proper defense:
The Court: If the plaintiff is going to claim the outcome of the case is affected by the defendant's representation, how can he defend that claim without knowing what the successor attorney did up through the time of trial? Doesn't he need to know what happened after he left the case?
[Plaintiff's Counsel]: Quite honestly, yes.
Much like Cox, where the testimony of the defendant's former attorney was essential in order to prove or disprove the defendant's claim, the information held by Williams is essential to prove or disprove the plaintiffs' claims in the present case. The court finds that in this instance, the reason for disclosure of information that would normally be protected by the attorney-client privilege outweighs the potential chilling of essential communications between an attorney and his client. It would be an onerous burden to require an attorney to defend a legal malpractice claim, alleging that the attorney's actions impaired pending or future litigation, without providing that attorney access to the information held by his or her successor in such matters. Accordingly, when a plaintiff sues a former attorney for malpractice claiming that the malpractice negatively affected ongoing or subsequent litigation, that plaintiff has waived the attorney-client privilege for all attorneys involved in that litigation.
Other jurisdictions have addressed this issue as well and support this proposition. See, e.g., Pappas v. Holloway, 114 Wash.2d 198, 787 P.2d 30 (2001) (holding that the attorney-client privilege was waived with respect to all attorneys involved in handling underlying litigation where the former client sued one of those attorneys for legal malpractice).
The motion to quash and for a protective order is denied as the defendant's representation of the plaintiffs in the underlying litigation is at issue, and, because they have failed to establish a good cause for doing so.