Opinion
No. FST CV 08 5009523 S
March 29, 2011
MEMORANDUM OF DECISION RE MOTION FOR PROTECTIVE ORDER #155
Presently before the court is a motion for protective order filed by the plaintiff, Marshall Caro, seeking to preclude the deposition testimony of Attorney Daniel G. Johnson of the Stamford office of Cummings Lockwood, LLC. The stated basis for the plaintiff's motion for a protective order is that Attorney Johnson's testimony would violate the attorney-client privilege. In this matter, the plaintiff has brought suit against the defendants, Attorney John Meerbergen, in his capacity as the Administrator of the Estate of Elizabeth Anne Caro, David Weintraub and Eric Weintraub (the Weintraubs), to quiet title to property located at 47 Angelus Drive in Greenwich. The plaintiff alleges that following the intestate death of his late wife, Elizabeth Anne Caro, on February 8, 2008, that he is entitled to a certain portion of the subject premises. The Weintraubs are Elizabeth Caro's biological children and the plaintiff is their stepfather.
The court held a hearing regarding the plaintiff's motion on January 10, 2011. At this hearing, Attorney Johnson and the plaintiff offered testimony regarding the legal issues raised in this motion. From this testimony and a review of the parties' post-hearing briefs, the court finds the following facts. Sometime prior to Elizabeth Caro's death from lung cancer on February 8, 2008, the plaintiff contacted a Florida based Cummings Lockwood attorney in order to begin the process of drafting estate planning documents. (Tr., p. 71.) This Florida attorney indicated that he would recommend a lawyer in the Stamford office who could assist the plaintiff. (Tr., p. 71.) Attorney Johnson, who is a trusts and estates lawyer, then initiated telephone contact with the plaintiff. (Tr., p. 72.) During this initial telephone conversation, to which Elizabeth Caro was not a party the plaintiff did not specifically ask Attorney Johnson to prepare estate planning documents for either himself or his wife. (Tr., p. 46.) Nevertheless, Attorney Johnson and the plaintiff did discuss the fact that Elizabeth Caro was quite sick, and, as a result, it was urgent for Elizabeth Caro to sign estate planning documents within a short period of time. (Tr., p. 47.) Following this telephone conversation, Attorney Johnson sent an estate planning questionnaire for married clients to the plaintiff. (Tr., p. 48.) Attorney Johnson testified that although this document was for married clients, that does not necessarily imply that his firm intended to commence a joint legal representation of both spouses. Furthermore, Attorney Johnson testified that even in instances where he only represented one of the spouses, that he still needed financial information from the other spouse. (Tr., p. 49-50.) A completed estate planning questionnaire was returned to Attorney Johnson's office that listed the plaintiff as "client two" and Elizabeth Caro as "client one." (Tr., p. 30.) Attorney Johnson testified that any information that he gleaned from reading the estate planning questionnaire was "sterile" in that it only included the individual's name, date of birth, social security number and other basic information such as addresses. (Tr., p. 21.) According to Attorney Johnson, the information on this form would not give anybody an advantage in an adversarial relationship. (Tr., p. 22.)
In addition to the plaintiff and Attorney Johnson's testimony, Attorney John Carberry of Cummings and Lockwood, LLC also briefly testified at this hearing.
The plaintiff, the Weintraubs and Attorney Meerbergen all submitted separate post-hearing briefs. Pursuant to the agreement of the parties following the hearing, these briefs were filed on March 10 and 11, 2011.
All of the citations are in reference to the transcript from the hearing that occurred before this court on January 10, 2011. For the sake of brevity, the word transcript will be abbreviated as "Tr."
Following his receipt of the estate planning questionnaire, Attorney Johnson had a follow up telephone call with the plaintiff. (Tr., p. 38.) During this conversation, Attorney Johnson and the plaintiff only discussed Elizabeth Caro's estate plan; there was no discussion of the plaintiff's estate plan. (Tr., p. 52-53.) After this second telephone conversation, Attorney Johnson went to the Caro's Greenwich home on a Thursday afternoon in early 2008. The purpose of this meeting was so that Attorney Johnson could obtain information in order to prepare Elizabeth Caro's estate plan. (Tr., p. 55.) Upon arriving at the Caro's home, Attorney Johnson was greeted by the plaintiff and the plaintiff took Attorney Johnson in to meet Elizabeth Caro. At this time, Elizabeth Caro was extremely ill and she remained seated in the living room at all times. (Tr., p. 54-56.) Attorney Johnson testified that the plaintiff was not present in the room with Elizabeth Caro during the bulk of the conversation between Attorney Johnson and Elizabeth Caro. (Tr., p. 55-56.) The plaintiff disputes Attorney Johnson's testimony regarding this fact and contends that he was in the room for "every second" of the conversation. (Tr., p. 80.) The conversation between Attorney Johnson and Elizabeth Caro lasted approximately twenty minutes. Attorney Johnson indicated that this meeting was shorter than usual because Elizabeth Caro was getting tired and he felt that he had enough information to draft simple estate planning documents. (Tr., p. 56.) At the conclusion of the meeting, Attorney Johnson was led out of the Caro's home by the plaintiff, and they had a "mechanical conversation" about what was to transpire over the next few days. The plan was for Attorney Johnson to draft estate planning documents and deliver them to Elizabeth Caro to sign as soon as possible. (Tr., p. 57-58.) Upon his return to the office on Friday morning, Attorney Johnson began to draft a will, an irrevocable trust, power of attorney and advanced medical directive for Elizabeth Caro with the intent of having her sign these documents on Monday. (Tr., p. 35.) Nevertheless, the plaintiff sent Attorney Johnson an email over the weekend telling him to stop work because Elizabeth Caro's health had declined to such a point that she could no longer execute any legal documents. (Tr., p. 39-40.) Elizabeth Caro then died the next week. (Tr., p. 40.) At no point following Elizabeth Caro's death did the plaintiff contact Attorney Johnson in order to have him prepare estate planning documents for the plaintiff. (Tr., p. 58-59.)
In his post-hearing brief and at oral argument before this court on January 10, 2011, the plaintiff argues that the court should grant his motion for a protective order because any conversations between himself and Attorney Johnson are protected by attorney-client privilege. The plaintiff further contends that any statements made by Elizabeth Caro to Attorney Johnson are also subject to the same privilege. In essence, the plaintiff is arguing that Attorney Johnson undertook a joint legal representation of himself and Elizabeth Caro when he began to gather information to draft an estate plan for both of the Caros. Both the Weintraubs and Attorney Meerbergen counter that the plaintiff has failed to establish that he was represented by Attorney Johnson either in an individual capacity or jointly with his wife, Elizabeth Caro. The Weintraubs and Attorney Meerbergen further argue that as the administrator of Elizabeth Caro's estate, Attorney Meerbergen has the ability to waive Elizabeth Caro's attorney-client privilege. Therefore, Attorney Meerbergen has the authority to allow Attorney Johnson to testify as to his conversation with Elizabeth Caro.
"The basic principles of the attorney-client privilege are undisputed. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice . . . 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 . . . Rule 1.6(a) of the Rules of Professional Conduct effectuates that goal by providing in relevant part that [a] lawyer shall not reveal information relating to representation of a client unless the client consents after consultation . . . The attorney-client privilege seeks to protect a relationship that is a mainstay of our system of justice . . . Indeed, [our Supreme Court] has stated: 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 attorney, if the latter was at liberty or compellable to disclose the facts of which he had thus obtained possession; and hence it has become a settled rule of evidence, that the confidential attorney, solicitor or counselor can never be called as a witness to disclose papers committed or communications made to him in that capacity, unless the client himself consents to such disclosure . . . Our Supreme Court has noted 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 . . . The burden of proving the facts essential to the privilege is on the party asserting it." (Citations omitted; internal quotation marks omitted.) State v. Davis, 98 Conn.App. 608, 631-32 (2006), aff'd, 286 Conn. 17 (2008).
"The attorney-client privilege applies to communications: (1) made by a client; (2) to his or her attorney; (3) for the purpose of obtaining legal advice; (4) with the intent that the communication be kept confidential." Pagano v. Ippoliti, 245 Conn. 640, 649 (1998). "Thus . . . the proponents of the privilege, [have] the burden to prove not only the existence of an attorney client relationship (or their reasonable belief that such a relationship existed), but also that the communication in question was made in confidence for the purpose of seeking advice of counsel." Somma v. Fabian, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0174508 (June 3, 2005, Jennings, J.). "An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." Somma v. Gracey, 15 Conn.App. 371, 379 (1988).
Consequently, the first issue for the court to address is whether Attorney Johnson had an attorney-client relationship with either Elizabeth Caro or the plaintiff. Given the testimony at the hearing before this court, it is clear that Attorney Johnson had an attorney-client relationship with Elizabeth Caro. The purpose of Attorney Johnson's meeting with Elizabeth Caro at her Greenwich home was to obtain information from her so that he could prepare estate planning documents. Following this meeting, Attorney Johnson began to draft these documents for Elizabeth Caro's signature. Accordingly, it is manifest that Elizabeth Caro sought legal advice and assistance from an attorney experienced in trusts and estates matters. Consequently, any statements made by Elizabeth Caro to Attorney Johnson during the course of this representation are subject to the attorney-client privilege. See Gould, Larson, Bennett, Wells McDonnell, P.C. v. Panico, 273 Conn. 315, 322 (2005) (stating that "instructions given by a client to an attorney in relation to a will about to be drafted by the attorney are privileged").
The more difficult question is whether Attorney Johnson had an attorney-client relationship with the plaintiff. Although there was some evidence before the court that could support the existence of such a relationship, the court concludes that the plaintiff did not have an attorney-client relationship with Attorney Johnson. The only potentially sensitive information that the plaintiff ever gave to Attorney Johnson was that located on the completed estate planning questionnaire. The purpose of this information was to aid in the development of Elizabeth Caro's estate plan. There was no clear evidence presented before this court indicating that the plaintiff ever intended that Attorney Johnson would draft estate planning documents for him or that the plaintiff gave any information to Attorney Johnson that would facilitate such a task. It is very noteworthy that following Elizabeth Caro's death, the plaintiff did not initiate any further contact with Attorney Johnson. (Tr., p. 59-58.) If the plaintiff had truly expected that Attorney Johnson was going to draft estate planning documents for him, it only makes sense that he would have eventually followed up and asked where such documents were. This fact indicates to the court that the plaintiff did not believe that he had an attorney-client relationship with Attorney Johnson. Furthermore, even though this fact is not dispositive, it is also worth noting that Attorney Johnson only felt as though he had an attorney-client relationship with Elizabeth Caro and not with the plaintiff. (Tr., p. 44.)
Even if the court had concluded that the plaintiff had an attorney-client relationship with Attorney Johnson, then, at most, Attorney Johnson would have jointly represented both Elizabeth Caro and the plaintiff. "When two or more people consult an attorney together on a matter of joint interest . . . their communications [are] privileged as to the outside world, though not as to each other in a later controversy between themselves . . . The rationale . . . [of this rule] is that the individuals involved did not intend to keep their communications secret from one another." (Citations omitted; internal quotation marks omitted.) Pagano v. Ippoliti, supra, 245 Conn. 649-50. "[U]nder such circumstances, attorney-client privilege does not bar introduction of the controverted information." Id., 650 n. 12. The plaintiff is currently effectively suing Elizabeth Caro because he has brought a lawsuit against the administrator of her estate to quiet title to her former property. Accordingly, in the instance of joint representation, Elizabeth Caro's comments to Attorney Johnson would not be privileged under this rule.
Having determined that only Elizabeth Caro had an attorney-client relationship with Attorney Johnson, it becomes clear that the plaintiff lacks standing to assert her attorney-client privilege. "It is . . . well settled that the client alone is the holder of the [attorney-client] privilege." In re Sean H., 24 Conn.App. 135, 143, cert. denied, 218 Conn. 904 (1991). "The privilege is . . . reserved for those whose interests it is designed to protect and not adverse parties or the general population." Id. A litigant cannot "[seek] to assert a privilege that he does not hold." Id., 142.
The fact that the plaintiff cannot claim Elizabeth Caro's attorney-client privilege should be enough to deny this motion for a protective order outright. Despite this fact, the parties have also raised the issue of whether Attorney Meerbergen, as the administrator of Elizabeth Caro's estate, can waive her privilege. There does not appear to be any appellate authority in this state that has clearly addressed this question. But see Rosales v. Lupien, 50 Conn.App. 405, 410 (1998) (noting, without disapproval, a trial court's ruling that an attorney could, in the presence of the jury, ask an administrator whether he was willing to waive the deceased person's attorney-client privilege). Nevertheless, in a highly persuasive decision, one Superior Court judge has held that an administratrix of an estate could waive the deceased individual's attorney-client privilege. In Estate of Putnam v. State, Superior Court, judicial district of New London, Docket No. CV 09 501668 (December 29, 2009, Parker, J.T.R.) ( 49 Conn. L. Rptr. 77), the court noted that appellate courts in Massachusetts, New York and Rhode Island have all held that an executor of an estate can waive the attorney-client privilege. See District Attorney of Norfolk District v. Magraw, 417 Mass. 169, 172, 628 N.E.2d 24 (1994); Mayorga v. Tate, 302 App.Div.2d 11, 12, 752 N.Y.S.2d 353 (2002); Lapan v. Lapan, 100 R.I. 498, 504, 217 A.2d 242 (1966). The Estate of Putnam court also cites to the decisional law of a number of other jurisdictions and leading evidence treatises that have come to the same conclusion as the courts in Massachusetts, New York and Rhode Island. As all of the states bordering Connecticut have held that an administrator of an estate can waive the deceased person's attorney-client privilege, and a Superior Court judge in this state has also ruled as such, the court determines that Attorney Meerbergen can waive Elizabeth Caro's attorney-client privilege.
In his post hearing brief, Attorney Meerbergen states: "The Administrator believes it is in the best interest of the Estate and critical to preserving the assets of the Estate to waive the attorney-client privilege to enable the Administrator to properly defend against the claims of the plaintiff, Marshall Caro, which are the subject matter of this litigation. If plaintiff prevails, it would have a serious detrimental impact upon the Estate of the Decedent Elizabeth Anne Caro and therefore the Administrator intends to waive attorney-client privilege as it is in the best interest of the Estate and the preservation of Estate Assets."
In an effort to contravene this result, the plaintiff argues that the Connecticut Supreme Court's holding in Gould, Larson, Bennett, Wells McDonnell, P.C. v. Panico, supra, 273 Conn. 315, bars Attorney Meerbergen from waiving Elizabeth Caro's attorney-client privilege. In the Gould case, the Supreme Court interpreted an exception to the attorney-client privilege doctrine that applied to will contests. The Supreme Court stated the rule as follows: "[u]nless otherwise provided by statute, communications, by a client to the attorney who drafted his will, in respect to that document and transactions between them leading up to its execution are not privileged, after the client's death, in a suit between devisees under the will and heirs at law, or other parties who all claim under him." (Internal quotation marks omitted.) Id., 323. The Gould court held that this exception did not apply in instances where the deceased individual's proposed will was not ultimately drafted and executed. Id., 317. Although the facts in Gould are somewhat similar to the present matter in that the Weintraubs are seeking to take the deposition testimony of an attorney who began, but did not ultimately finish, drafting a will, Gould is factually distinguishable from the present matter. In Gould, the issue raised was whether a particular exception to the attorney-client privilege doctrine applied under the facts of that case. The attorneys in Gould did not want to testify as to their client's communications and filed a motion to quash the subpoenas of the deceased person's heirs. In contrast, in this matter, the question before the court is whether a deceased individual's administrator can choose to waive the privilege if he believes it is in the best interests of the estate. Although the Supreme Court's holding in Gould does establish that the testamentary exception to the attorney-client privilege would not apply here because Elizabeth Caro did not execute the will drafted by Attorney Johnson, Gould does not opine on the issue of whether the privilege can be waived by the administrator of her estate. As the court has previously indicated that it is persuaded by the out-of-state law cited by the Superior Court in Estate of Putnam, the court finds that Gould does not govern the present case. Accordingly, the court rejects this argument raised by the plaintiff.
For all of the reasons stated above, the plaintiff's motion for a protective order is denied.