Content and Purpose Governs Connecticut’s New Standard for Determining Attorney/Client Privilege
On September 6, 2016, the Connecticut Supreme Court published its opinion regarding Michael C. Harrington v. Freedom of Information Commission, et al. (SC 19586). As discussed below, this opinion creates a new standard for invoking attorney/client privilege in instances where the communication in question contains both legal and non-legal content.
This case, on transfer from the Connecticut Appellate Court, involved electronic communications made from 2007 to 2011 between officers of a quasi-public state agency previously named Connecticut Resources Recovery Authority (CRRA) and its contract lobbyists who happened also to be attorneys. At the time, CRRA owned a trash-to-energy plant called Mid-Conn located in the city of Hartford. CRRA entered into an agreement for consultant services with a lobbyist with whom it had a long-standing business relationship and whose firm also provided legal services to the agency. The agreement mainly charged the lobbyist with performing municipal relations services on behalf of the CRRA with the Mid-Conn host community.
The plaintiff, attorney Harrington, represented Tremont Public Advisors, LLC, which was an unsuccessful bidder for the aforementioned municipal relations contract.
The plaintiff sought disclosure under Connecticut’s Freedom of Information Act of electronic communications that were withheld by the defendant based on attorney/client privilege. After an in camera review of the documents, a hearing officer decided and the Freedom of Information Commission (FOIC) later upheld that the documents qualified for the protections found under attorney/client privilege on the basis that legal and non-legal materials within the communications were “inextricably linked” to the giving of legal advice.
The plaintiff appealed to the Superior Court, which after its own in camera review concluded that there was sufficient evidence to support the commission’s findings. The plaintiff then appealed to the Appellate Court and the Supreme Court transferred the appeal.
Connecticut Supreme Court Ruling
A majority of the Connecticut Supreme Court rejected the notion that attorney/client privilege automatically attaches when the content of the communication between attorney and client contains both legal and non-legal content that is “inextricably linked.” In so ruling, the Harrington court acknowledged that a majority of other jurisdictions have endorsed the view that, in such situations, a review of the “primary purpose” of the mixed communication must be undertaken.
In its opinion, the majority states:
“There is broad consensus in other jurisdictions that, if the non-legal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation, both the client’s communications and the lawyer’s advice and assistance that reveals the substance of those communications will be afforded the protection of the privilege.”
Continuing, the Harrington majority ruled as follows:
“Lest a non-legal element become the tail that wags the dog, a clear and significant nexus between attorney client communications and legal advice or assistance is rightly expected. In classifying the character of the communication, the crucial inquiry is whether the intent of the client, in deciding to approach the lawyer, is to obtain legal counsel, even if other dimensions of matter are addressed as well.” (Emphasis supplied)
Attorneys often are called upon by their clients to express an opinion on matters not strictly of a legal nature, such as business, politics, ethics or other matters. In those circumstances, Harrington teaches the following practical lessons for those doing business in Connecticut:
- If the primary purpose of a mixed communication is to seek or provide legal advice and the non-legal aspects of the communication are inextricably linked, then the entire communication will be afforded privilege.
- In contrast, a communication that is focused on non-legal matters and contains some legal content may be afforded privilege in that the legal portion may be redacted.
- Lastly, communications that are not legal in nature but are simply addressed or copied to counsel do not become privileged by the mere fact that counsel is included on the communication. For example, a client communication that is addressed or copied to an attorney regarding a business matter that may someday have legal implications will not be sufficient to garner privilege. The communication must actively solicit legal advice.
This decision has made clear that communications provided by lawyers contracted as consultants can include protected legal advice if in fact the primary purpose of the communication is to offer or obtain legal advice. Moving forward, it is anticipated that the Court will use the primary purpose test with respect to all attorney/client communications that include both legal and non-legal content when determining if a communication is protected by attorney/client privilege.