What Is and Isn’t Protected by the Attorney-Client Privilege?
posted: Dec. 19, 2022
Gesmonde, Pietrosimone & Sgrignari, L.L.C.
The attorney-client privilege is a somewhat misunderstood concept among the people and businesses that hire lawyers. Clients may assume that any communications they have with their attorney are protected from disclosure to others, but the privilege is more carefully defined than that.
While lawyers are generally under an ethical duty not to reveal information that clients confide to them, that duty is distinguishable from the attorney-client privilege that exists in court. The privilege is actually a rule of evidence. It prevents certain communications between an attorney and client from being admissible in court proceedings. The reason for the rule is to protect a party’s right to counsel, especially in criminal cases.
However, under the applicable Connecticut rule of evidence, the privilege protects only certain disclosures, namely confidential communications between an attorney and client “for the purpose of seeking or giving legal advice.” That means other topics of conversation are not protected.
For example, if a business owner emails her lawyer asking if a potential logo design could be trademarked, that communication would be protected because the client is asking for legal advice. But if the same business owner asks the lawyer’s opinion on buying a piece of equipment, that communication would probably not be privileged in court because it is related more to a financial decision.
But what about a dual-purpose communication, one that touches upon both legal and non-legal matters? Clients often ask attorneys for their opinions on politics, business, ethics or other issues while at the same time asking for legal advice. In a 2016 ruling, Harrington v. Freedom of Information Commission, the Connecticut Supreme Court said a dual-purpose communication is privileged if “the intent of the client … is to obtain legal counsel, even if other dimensions of matter are addressed as well.” In other words, the communication will be privileged if the primary purpose is to obtain or provide legal advice. If the communication is mostly about non-legal matters but contains some legal content, it is possible that a court could order the communication to be revealed but with the legal aspects redacted.
In practical application, attorney-client privilege issues can become very complicated, and not all courts apply the same rules. In fact, the U.S. Supreme Court will hear arguments in January 2023 in a case expected to decide the validity of the primary purpose test, at least on the federal level. In the meantime, the principles dictated in the Harrington decision will continue to control application of the privilege in Connecticut.
At Gesmonde, Pietrosimone & Sgrignari, L.L.C. we take our obligation to respect our clients’ confidences at all times very seriously, regardless of the subjects covered, and you can rest assured that anything you discuss with us will remain private. If you need consultation on any legal matter, reach to our Hamden and East Haven offices by calling 203-745-0942 or contact us online.
Gesmonde, Pietrosimone & Sgrignari, L.L.C. is located in Hamden, CT and serves clients in and around North Haven, Hamden, Waterbury, Bethany, Milford, Wallingford, Prospect, Woodbridge, Northford, Madison, Beacon Falls, Branford, Cheshire, North Branford, East Haven, Naugatuck, Meriden, Ansonia and New Haven County.
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