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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.6:101      Model Rule Comparison

Model Rule 1.6 is a short statement of an attorneyÁs duty of confidentiality and its exceptions. Conn. Rule 1.6 is more detailed.

Model Rule 1.6(a) states, in part, that a lawyer shall not reveal, without clientÁs informed consent (defined as an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct), information Ërelating to representation,Ó except as disclosure is impliedly authorized in order to carry out representation and subject to the exceptions in Model Rule 1.6(b). Conn. Rule 1.6(a) contains a similar prohibition, subject to activities impliedly authorized by representation and subject to the exceptions in 1.6(b),(c), and (d). Consent under Conn. Rule 1.6(a), however, is not Ëinformed consentÓ but is defined in the terminology section of the Rules as Ëcommunication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.Ó

Model Rule 1.6(b)(1) is comparable to Conn. Rule 1.6(b). In Model Rule Rule 1.6 (b)(1), an attorney may reveal information relating to the representation of a client if the lawyer reasonably believes disclosure is necessary to prevent Ëreasonably certain death or substantial bodily harm.Ó Conn. Rule 1.6(b) contains a similar provision, with two variations. First, disclosure is mandatory under the Rule. Second, the attorney must reasonably believe disclosure is necessary to prevent a criminal act resulting in death or substantial bodily harm.

Model Rule 1.6(b)(3) and Conn. Rule 1.6(d) are identical regarding the ability of a lawyer to reveal confidential information in self-defense against a claim by a client.

Model Rule 1.6(b)(2) exception regarding permissible disclosure in order for the lawyer to secure legal advice about compliance with the Rules is not contained in Conn. Rule 1.6. Additionally, Model Rule 1.6(b)(4) exception regarding disclosure in order to comply with other law or a court order is not contained in Conn.Rule 1.6. There is Connecticut case law discussed below, however, that is in accord with Model Rule 1.6(b)(4).

The exceptions contained in Conn. Rule 1.6(c) regarding the ability to disclose confidential information to prevent a client from committing a criminal act likely to cause substantial injury to the financial interest or property of another and/or to rectify the consequences of any fraudulent or criminal act in which the lawyerÁs services had been used do not appear in Model Rule 1.6.

1.6:102      Model Code Comparison

DR 4-101 ËPreservation of Confidences and Secrets of a ClientÓ was substantially different from Conn. Rule 1.6. DR 4-101(A) defined Ëconfidence and Ësecret.Ó Whereas, Conn. Rule 1.6 does not contain either term. DR 4-101(B) was comparable to Rule 1.6(a) in that both contain a prohibition against revelation of confidential information, unless consent is given by a client after disclosure and subject to certain exceptions. DR 4-101(B) prohibited a lawyer from ËknowinglyÓ revealing confidential information. Conn. Rule 1.6(a) does not contain this degree of scienter, rather, it is a blanket prohibition regardless of knowledge: Ëa lawyer shall not reveal.Ó DR 4-101(B)(1) and (2) are not contained in Conn. Rule 1.6.

A clientÁs may consent to disclosure under both Rules if given Ëfull disclosureÓ (DR 4-101(C)(1)) or Ëafter consultationÓ (Conn. Rule 1.6(a)).

Conn. Rule 1.6 does not contain a provision similar to DR 4-101 (C)(2) regarding permissible disclosure in circumstances permitted under the Rules or as required by law or court order.

Conn. Rule 1.6(b) and (c)(1) are comparable to DR4-101(C)(3) regarding disclosure to reveal a clientÁs potential criminal activity. DR 4-101(C)(3) was a broad exception granting a lawyer the discretion to reveal information regarding his clientÁs intention to commit a crime and the attendant information necessary to prevent said crime. There is no language regarding the reasonableness of the lawyerÁs belief or qualifiers regarding the types of crimes that trigger this exception as in Conn. Rule 1.6(b). Conn. Rule 1.6(b) limits disclosure to information that would prevent a client from committing a criminal act likely to result in death or substantial bodily harm. Furthermore, if the lawyer reasonably believes disclosure is necessary to prevent such actions, he must disclose the information.

Conn. Rule 1.6(d) and DR 4-101(C)(4) are analogous in that both permit an attorney to reveal confidential information in disputes regarding his clients. DR 4-101was more specific, and therefore, more narrow in that it permits disclosure in disputes with clients over fee collection or in the lawyerÁs defense against a claim by a client. Conn. Rule 1.6(d), on the other hand, is broader in its scope. For instance, disclosures under the Connecticut rule may be made to both establish a claim and assert a defense.

Conn. Rule 1.6 does not contain a provision such as DR4-101(D) regarding the duty of care the lawyer must use in order to keep confidential information secure with employees, associates, and others or a provision regarding the ability of an attorneyÁs employees to disclose information set forth in DR4-101(C).

DR 4-101 did not contain the provision set forth in Conn. Rule 1.6(c).

1.6:200   Professional Duty of Confidentiality

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ã 55:101, ALI-LGL ãã 59-66, Wolfram ãã 6.1, 6.7
Connecticut Commentary:

The Comments to Conn. Rule 1.6 discuss the principle of confidentiality in the context of the attorney-client relationship. This duty is at the very essence of the attorney client relationship because it encourages full and frank communication by the client to his lawyer, allowing the lawyer to be a well informed and zealous advocate. The Comments state, in part: ËThe principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through the compulsion of law.Ó

1.6:210      Definition of Protected Information

In Informal Opinion 98-2 (1998), the Opinion characterized certain contents of a former clientÁs file as not subject to the rule of confidentiality. Specifically, material obtained from a subpoena duces tecum issued to a third party was determined not to contain confidential information as between the requesting attorney and the subpoenaed party.

In Informal Opinion 00-20 (2000), an attorney was hired by an insurer to represent an insured. The Committee opined that the attorney could not release billing records relating to the representation of the insured to an outside auditing company hired by the insurer, without first obtaining client consent after consultation.

In Informal Opinion 98-18 (1998), the inquiring attorney held funds collected from a judgment for two clients. After a reasonable search, the attorney was unable to locate the clients. The Opinion noted that the attorney should refer to escheat law of Connecticut to determine the ultimate disposition of the funds. The Committee noted, however, that the release of the clientÁs names and addresses may be requested by the State in its attempts to locate the owners. The Opinion cited that other ethics committees have opined that a clientÁs identity is confidential information, protected by Rule 1.6. The Opinion distinguished this case because the purpose of providing the names and addresses of the attorneyÁs clients would be in attempts to unite them with their funds, therefore, disclosure was authorized by 1.6(a) Ëimpliedly authorizedÓ language.

In Informal Opinion 99-40 (1999), the Committee opined that a clientÁs name, address and telephone number is information relating to representation and subject to Rule 1.6.

Informal Opinion 99-35 (1999) noted that disclosure of clientsÁ names and address and dates of discharges in bankruptcy, although part of the public record, is confidential information protected by Rule 1.6 and may not be disclosed to third parties absent client consent after consultation.

In Silver v. Statewide Grievance Committee, 42 Conn.App. 229, 679 A.2d 392, (1996), the court held that information regarding a clientÁs settlement, specifically, receipt of settlement proceeds, was confidential information. Further, the court held that the attorney was not impliedly authorized under Rule 1.6(a) to notify the automobile insurance companies of such receipts, in light of the finding that the insurers had no interest in the settlement proceeds while they were in control of the attorney.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

In Informal Opinion 90-1 (1990), the Committee noted that the duty of confidentiality continues despite termination of the client-lawyer relationship and applies to both matters communicated in confidence as well as all information relating to representation whatever its source.

In Informal Opinion 92-10 (1992), the duty of confidentiality for an attorney-administrator of an estate is owed to the heirs and creditors of the decedent. The attorney-administrator is not the attorney for the estate or the attorney for the decedent, therefore, the attorney must not disclose information in contravention of Rule 1.6.

Informal Opinion 99-52 (1999) discussed the propriety of using e-mail which contains confidential client information. The Opinion noted that using e-mail as a means to communicate does not violate Rule 1.6; however, the attorney has ultimate responsibility for evaluating whether e-mail communication should be used to maintain client confidentiality.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:250      Information Imparted in Lawyer Counseling Programs

In Informal Opinion 97-7 (1997), the Connecticut Bar Association mentor/mentee program provided names of lawyers who were willing to act as mentors to other lawyers in need of assistance. The Opinion noted that care must be exercised to determine whether there is an attorney-client relationship between the parties (i.e., mentor-mentee, mentor-menteeÁs client). Furthermore, the attorneys could prevent Rule 1.6 confidentiality issues by using hypothetical examples and/or obtaining the clientÁs consent.

1.6:260      Information Learned Prior to Becoming a Lawyer

In Gazda v. Olin Corp., 5 CSCR 227 (January 18, 1990, Hodgson, J.), the court held that Rules 1.6, 1.7, 1.9, and 1.10 applied to members of the profession and not to a third-year law student, who had been employed as a legal secretary by a law firm.

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ã 55:101, ALI-LGL ãã 59-66, Wolfram ãã 6.4, 6.7
Connecticut Commentary:

1.6:310      Disclosure to Advance Client Interests or with Client Consent

Informal Opinion 97-16 (1997) incorporated the definition of Ëconsent after consultationÓ found in terminology section of the Rules as Ëcommunication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.Ó

In Informal Opinion 99-10 (1999), the Committee opined that an attorney intending on selling his law firm practice must strictly comply with Rule 1.6 and obtain client consent prior to the disclosure or transfer of the files or other information relating to the representation of present or former clients.

1.6:320      Disclosure When Required by Law or Court Order

In Informal Opinion 88-21(1988), the Department of Justice issued a grand jury subpoena for certain client files at the clientÁs law firm. The Opinion noted that there is no provision in Rule 1.6 requiring a lawyer to disclose confidential information as required by law. There is, however, authority that where a lawyer is required to disclose information, there is a Ëforced exceptionÓ to non-disclosure. The Committee suggested that disclosure could arise in the situation where the court requires disclosure after hearing a good faith motion to quash.

In Informal Opinion 91-15 (1999), the Connecticut Department of Revenue Services issued a subpoena duces tecum to an attorney ordering him to divulge information in one of his clientÁs files with regard to a taxable item. Under Rule 1.6(a), unless the client consents, the attorney must not disclose the confidential information. The Committee opined that the attorney should appear before the Department of Revenue Services and invoke the privilege. If the attorney is required to comply with the final order of a court of competent jurisdiction, he must produce the information.

1.6:330      Disclosure in Lawyer's Self-Defense

There appear to be no pertinent Connecticut court decisions or ethic opinion on this subject.

1.6:340      Disclosure in Fee Dispute

In Informal Opinion 87-5 (1987), an attorney represented a client who later discharged him and engaged a new attorney. The original attorney delivered all of the clientÁs files to the new attorney. The client, however, refused to pay the original attorneyÁs fees up to the date of termination. The original attorney sought the return of, or at the very least, copies of the attorneyÁs work product, in order to initiate litigation to collect his fee from the client. The Opinion held that the conflict was governed by Rule 1.6(d), which authorized the original attorney to reveal information from the files to establish a claim for fees. Since the original attorney was entitled to use the file documents, the new attorney was obligated to return the original attorneyÁs working documents, or at the very least, copies of them, for use by the original attorney for the limited purpose of establishing a claim for fees against the client.

In Informal Opinion 94-5 (1994), the Committee determined that a law firmÁs proposed assignments of its accounts receivable to a wholly independent non-lawyer agency was permissible under Rule 1.6(d). The Opinion, however, highlighted the additional steps necessary to comply with Rule 1.6. For instance, in order to ensure that any disclosure of information to the agency relating to the representation of such clients would be no more than necessary to establish each claim of delinquent fees owed to the law firm by the former clients, the firm should prohibit the agency from gaining access to the law firmÁs files of its former clients.

1.6:350      Disclosure to Prevent a Crime

In Informal Opinion 87-8 (1987), the Committee opined that Rule 1.6(b) did not require the attorney to disclose the fact that his client had been convicted of a crime in another state, released on parole after incarceration, fled the jurisdiction in violation of probation and to the date of the Opinion remained outside of the state without informing authorities of his whereabouts to law enforcement. The Opinion noted that while violation of probation is a continuing criminal act, it is not a crime of such seriousness that would mandate disclosure under Rule 1.6(b) or even permit discretionary disclosure under Rule 1.6(c).

In Informal Opinion 94-1 (1994), an attorney inquired whether he should divulge his strong suspicions regarding a former clientÁs actions. Specifically, the attorney suspected that the former client staged accidents in order to falsely claim personal injuries and fraudulently attempt to receive insurance proceeds. Based on his strong suspicions, the attorney inquired whether he could disclose this information to various parties, including the StateÁs Attorney GeneralÁs Office and the insurance carrier involved in the case. The Opinion noted that disclosure under Rule 1.6(c) is in the attorneyÁs discretion and should be made only to the extent necessary to rectify consequences where the attorneyÁs legal services were made instruments of the clientÁs crime or fraud. Based on the facts, Rule 1.6(c) did not apply because the suspicions were not sufficient to fall within 1.6(c).

In Informal Opinion 96-9 (1996), the Committee discussed Rule 1.6(c)(2). The inquiring attorney represented a woman, W, who killed her mother and later, was appointed the administrator of the motherÁs estate. As part of the plea agreement, W agreed not to make any claim to any of the estate proceeds. Upon release from prison, W filed a claim against the estate and the court found in her favor. The attorney appealed the decision of the probate court and was ordered to identify and turn over the estate assets or risk being held in contempt. The Opinion noted that the attorney owes a duty of confidentiality to W. Pursuant to Rule 1.6(c)(2), however, it is in the discretion of the attorney to disclose the information to the insurance company.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

In Mulka v. Fain, No. CV 89-0363274S, 1994 WL 146793 (Conn. Super. April 14, 1994), the clientÁs expressed his intention to kill his former wife to his attorney. The court noted that Rule 1.6(b) requires a lawyer to reveal information necessary to prevent a client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

1.6:370      Disclosure to Prevent Financial Loss

In Informal Opinion 87-4 (1987), the inquiring lawyer represented a client in a personal injury matter. The client previously was a recipient of town welfare. The lawyer notified the client of the townÁs lien pursuant to Conn. Gen. Stat. Section 17-283a(a) against any recovery in the personal injury claim. The client informed his attorney that he had no intention of notifying the town of his pending claim and did not consent for his attorney to do the same. The Opinion addressed whether any of the four exceptions to non-disclosure were present in the case. Particularly, the opinion noted that the analysis under the financial injury exception is a highly subjective test. Furthermore, at the time of the decision, it was unclear whether non-disclosure would constitute a criminal act (the applicable statute requires notification within 15 days of receipt of payment), because the client had not yet received the funds. The Committee found that the lawyer did not have a duty to disclose the pendency of his clientÁs personal injury claim to the town welfare department.

In Informal Opinion 89-14 (1989) opined that in-house counsel, if he reasonably believes it is necessary, may disclose certain information to prevent the company from committing a criminal act likely to result in substantial injury to the financial interest of another, pursuant to Rule 1.6(c).

In Lewis v. Statewide Grievance Committee, 235 Conn. 693, 669 A.2d 1202 (1996), the court held that an attorney violated Rule 1.6 by disclosing confidential client information to a third party. The court noted that in order to disclose confidential information under Rule 1.6(c)(2) the attorney must Ë(1) reasonably believe such revelation is necessary; (2) reveal the information only to the extent the attorney reasonably believes is necessary; (3) reasonably believe the client has or is committing a fraudulent act; and (4) reasonably believe the attorneyÁs services had been used in committing that fraudulent act.Ó 235 Conn. at 701.

In Informal Opinion 87-14 (1987), the Committee ruled that an attorney may not disclose certain facts about his client to opposing counsel or the court pursuant to the exceptions in Rule 1.6. In a divorce action, the attorney represented the wife, who was pregnant by another man during the pendency of the action. The inquiring lawyer sought the CommitteeÁs opinion on whether this fact should be disclosed. The Committee ruled that it should not as it did not fall within one of the exceptions to confidentiality. Specifically, although adultery is a crime in Connecticut, it certainly is not covered under Rule 1.6(b), nor is it an action that would result in economic injury to another.

In Informal Opinion 97-21 (1997), the inquiring lawyer requested an opinion regarding whether he should disclose certain information about his former client. The client, first, retained the attorney in connection with injuries she sustained in a slip and fall accident in front of a store. Due to the clientÁs delay in seeking medical treatment and the absence of any independent witnesses to the accident, the attorney counseled the client that her case was not Ëstrong.Ó Thereafter, the client informed the attorney that she could allege that she fell at her apartment building because she knew her landlord had insurance and she could provide a witness that would attest to her fall. The client then sought the assistance of another attorney in connection with her claim against her landlord. The Opinion noted that under Rule 1.6(c)(1) the foregoing conditions must be met in order for an attorney to properly disclose confidential information: the attorney must have a reasonable belief as to: Ë(1) the necessity for disclosure; (2) the clientÁs intent to commit a criminal act; and (3) the likelihood that the criminal act will result in substantial injury to the financial interest and property of another.Ó The Opinion notes that there are no bright line rules for making these determinations.

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:390      Confidentiality and Conflict of Interest

In Bergeron v. Mackler, 225 Conn. 391, 623 A.2d 489 (1993), the court discussed the proper analysis in order to determine whether an attorney should be disqualified for conflict of interest related to a former client. First, it must be determined whether the attorneyÁs employment by a new client is adverse to the interest of his former client on matters substantially related to prior representation. Second, once a substantial relationship is found, receipt of confidential information that would potentially disadvantage the former client is presumed. In American Heritage Agency, Inc. v. Gelinas, 62 Conn.App. 711, 774 A.2d 220, (2001), the court noted that the analysis under Rule 1.9(1) has been refined to grant disqualification only upon a determination that the relationship between the issues in the previous and present cases is Ëpatently clearÓ or when there are identical or essentially the same issues. In re PGH International, Inc, 222 B.R. 401 (Bankr.D.Conn. 1998), noted that, although matters of confidence are an important component of an attorneyÁs duty of loyalty to former clients, the breadth of Rule 1.9 is not limited to potential for disclosure of information protected by Rule 1.6.

1.6:395      Relationship with Other Rules

In Informal Opinion 99-5 (1999) (later adopted as Formal Opinion 49), the Committee opined that Rule 1.14, Client Under A Disability, took precedence over Rule 1.6. The inquiring attorney was asked by his client to prepare his estate plan immediately because he intended on committing suicide. The attorney sought the CommitteeÁs opinion on whether he could divulge this information to persons that could help his client (i.e., law enforcement authorities, state health care authorities, his family). The Opinion noted that this information is confidential and protected under Rule 1.6 (the Opinion assumed that the suicide did not involve crime or fraud), however, Rule 1.14 takes precedence and would allow the attorney to make certain disclosures. Informal Opinion 00-5 (2000) revises the Opinion by noting that the attorney should first attempt to gain his clientÁs consent before disclosure.

In order for an attorney to be disqualified under Rule 1.10, (Imputed Disqualification), the attorney must have acquired information that is protected by Rule 1.6 and 1.9(2). If there is no showing that confidential information was acquired and could be used to disadvantage the opposing party, disqualification will not be granted. Faria v. Faria, No. 536038, 1997 WL 12149 (Conn. Super. 1997) In Informal Opinion 01-16, the Committee opined that, pursuant to Rule 1.10(b), an analysis must be conducted to determine whether the information that the lawyer acquired during his previous employment is ËconfidentialÓ information protected by Rule 1.6.

In Informal Opinion 99-9, the Committee opined that the requirement imposed on attorneys in Rule 3.4, which reads in part, Ëa lawyer shall not (1) unlawfully obstruct another partyÁs access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act,Ó is absolute and does not contain a provision that is subject to Rule 1.6.

The Comments to Conn. Rule 1.6 discuss the RuleÁs relationship to Conn. Rule 1.2, ËScope of Representation.Ó In certain situations, a lawyer must reveal confidential information. For instance, a lawyer may not counsel or assist a client in any action that is fraudulent or criminal and may have to reveal the information to avoid assisting the client in such behavior.

1.6:400   Attorney-Client Privilege

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA ã 55:301, ALI-LGL ãã 68-78, Wolfram ãã 6.3-6.5
Connecticut Commentary:

1.6:410      Privileged Communications

The standard for privileged communications is Ëwhere legal advice of any kind is sought from a professional legal advisor in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.Ó Rehim v. Kimberly-Clark Corp., No. 323416, 1996 WL 727338 (Conn.Super. Dec. 5, 1996) (quoting Rienzo v. Santangelo, 160 Conn. 391, 395, 279 A.2d 565 (1971)).

Connecticut is in accord with the majority of jurisdictions that recognize that the attorney client privilege does not extend beyond communications; Ëtherefore an attorney is not bound to remain silent as to all information regarding his client, but only as to that information born out of confidential communication.Ó Greathouse v. Greathouse, No. CV 970159726S , 2000 WL 157939 (Conn.Super Jan. 26, 2000) (quoting Trumpold v. Besch, 19 Conn.App. 22, 28, 561 A.2d 438 (1989)).

1.6:420      Privileged Persons

The holder of the privilege is client or his attorney acting with his authority. Gebbie v. Cadle Co., 49 Conn. App. 265, 714 A.2d 678, (1998).

1.6:430      Communications "Made in Confidence"

Communication between a defendantÁs attorney and a stateÁs attorney regarding a plea agreement is not protected by the attorney client privilege because such communication is made to a third party, with no expectation of confidentiality. State v. Burak, 201 Conn. 517, 526, 518 A.2d 639 (1986).

Gebbie v. Cadle Co., 49 Conn.App. 265, 714 A.2d 678, (1998) highlighted that one of the essential elements of the attorney client privilege is that the communication be confidential.

1.6:440      Communications from Lawyer to Client

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

Informal Opinion 90-28 (1990) noted that there are a number of cases that have held certain types of information, including payment of a lawyerÁs fees and expenses, clientÁs identity and whereabouts, do not come within the traditional definition of the attorney-client privilege.

In Heyman v. Zoning Bd. Of Appeals, No.CV 940138800, 940140366, 1995 WL 217429 (Conn.Super. Jan. 3, 1995), the court held that an attorney is obliged to reveal the identity of his client; Ëseeking the clientÁs name and the capacity in which the attorney was employed are not within the attorney-client privilege.Ó Heyman, 1995 WL at **2 (quoting New Haven v. Freedom of Information Commission, 4 Conn.App. 216, 220, 493 A.2d 283 (1985)).

In Rehim v. Kimberly-Clark Corp., No. 323416, 1996 WL 727338 (Conn. Super. Dec. 5, 1996), the court held that client bills are not confidential communications subject to the attorney client privilege. Additionally, the court cited an earlier second circuit decision holding that records relating to a firmÁs fee arrangements with its clients are not protected by the attorney-client privilege. The opinion noted that, Ëabsent special circumstances, client identity and fee information are not privileged.Ó Rehim, 1996 WL at **3 (quoting in re Two Grand Jury Subpoena Duces Tecum, 793 F.2d 69, 71-72 (2d Cir. 1986)).

In Ullman v. State, 230 Conn. 698, 647 A.2d 324, (1994), the court held that questions regarding whether an attorney knew his former clientÁs address and telephone number are not confidential communications subject to the attorney-client privilege.

1.6:460      Legal Assistance as Object of Communication

One of the elements necessary to asserting the attorney client privilege is that the communications between the client and attorney are made in confidence for the purpose of seeking legal advice. Ullman v. State, 230 Conn. 698, 711, 647 A.2d 324 (1994). In Olson v. Accessory Controls and Equipment Corp., 254 Conn. 145, 757 A.2d 14 (2000) the Supreme Court held that the attorney-client privilege protected a report made to her in confidence by an outside consultant hired by defendantÁs counsel to assist her in preparing for possible litigation with regulatory authorities because the report related to legal advice defendant had sought of its counsel and was inextricably linked to her giving of that advice.

1.6:470      Privilege for Organizational Clients

In Informal Opinion 88-21 (1988), an employer of a Connecticut labor organization provided a pre-paid legal service plan to its employees as a result of a collective bargaining agreement. The inquiring law firm was a participant in the plan and counseled some of the employees and retained their files at the firm office. The Department of Justice issued a grand jury subpoena for the files. The Committee noted that the attorney-client privilege may apply to the clientsÁ files.

In Evans v. Association of Norwalk School Administrators, No. CV940538581S, 1995 WL 384629 (Conn.Super. June 20, 1995), the court noted that when a union attorney performs legal services as part of the bargaining process, an attorney client relationship with union members is not created. Rather, the union is the attorneyÁs client.

In Informal Opinion 00-14 (2000), the Committee opined that information provided in connection with the corporation to the corporationÁs attorney by one of its stockholders is confidential.

1.6:475      Privilege for Governmental Clients

In Shew v. Freedom of Information Commission, 245 Conn. 149, 714 A.2d 664 (1998) the court held that attorney client privilege protects communications where the client is a corporate or municipal entity. The court set forth a four prong test to determine whether communication to an attorney for a public agency are protected by the attorney client privilege: Ë(1) the attorney must be acting in a professional capacity for the agency; (2) the communications must be made to the attorney by current employees and officials of the agency; (3) the communications must relate to the legal advice sought by the agency from the attorney; and (4) the communications must be made in confidence.Ó 245 Conn. at 670-671.

1.6:480      Privilege of Co-Clients

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:490      Common-Interest Arrangements

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:495      Duration of Attorney-Client Privilege

Informal Opinion 90-26 (1990) noted that the duty of confidentiality survives the death of the client. Informal Opinion 92-10 (1992) is in accord.

1.6:500   Waiver of Attorney-Client Privilege

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:
Connecticut Commentary:

Gebbie v. Cadle Co., 49 Conn.App. 265, 714 A.2d 678, (1998) noted the client or his attorney acting with the clientÁs authority has the power to waive the attorney-client privilege.

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

In Gebbie v. Cadle, Co., 49 Conn.App. 265, 714 A.2d 678, (1998), the court held that failure to claim the attorney client privilege by failing to object to disclosure when the holder has an opportunity to do so waives the privilege as to the communications so disclosed.

1.6:520      Waiver by Subsequent Disclosure

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:530      Waiver by Putting Assistance or Communication in Issue

The attorney client privilege may be waived if a party Ëinjects into ü litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneysÁ conduct.Ó Evans v. Reid & Riege, P.C., No. CV 930063465, 1994 WL 710839 (Conn.Super. Dec. 13, 1994) (quoting United States v. Stout, 723 F.Supp. 297, 310 n. 12 (E.D.Pa. 1989)). Waiver can also occur by the client if he files suit against his attorney.

1.6:600   Exceptions to Attorney-Client Privilege

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

In Informal Opinion 90-26 (1990), the inquiring attorney sought the CommitteeÁs opinion regarding whether he could disclose a childÁs paternity to third parties and whether the administrator of the clientÁs estate could waive the rule of confidentiality. At some point during his representation of the client, the client acknowledged his paternity of a child, born out of wedlock. Thereafter, the client inquired about the appropriate steps to acknowledge paternity. No further action was taken by either the attorney or his client, prior to the clientÁs death. The Committee noted that whether a post-mortem representative could waive the rule of confidentiality is not addressed in the Rules of Professional Conduct. Furthermore, Rule 1.6 does not permit waiver of the rule of confidentiality by a personal representative of the clientÁs estate, only the client. There are certain circumstances, under Rule 1.6(a), wherein an attorney may make disclosures that are impliedly authorized in order to carry out the representation- for example, where confidential communications concern the disposition of the deceased clientÁs property, where actions have commenced in the probate court. The Committee, however, noted that these disclosures normally involve the drafting of a will or a specific disposition of property, not an acknowledgment of paternity.

In Informal Opinion 94-5 (1994) an attorney was asked to testify by some of his former clientÁs children regarding the clientÁs desired disposition of certain property. The former client, who at the time of the Opinion was in a nursing home under a conservatorship, transferred a piece of property to her son, S. Upon her death, the client wanted her son to divide the property up equally among all her children. S expressed that he would not comply with his motherÁs wishes and his other siblings brought an action to compel the same. Under Rule 1.6(a), an attorney can not disclose his former clientÁs wishes, absent her consent. The Opinion noted, however, once the clientÁs will is admitted to probate, the Ëimplied waiver exceptionÓ to Rule 1.6(a), would likely allow the attorney to testify regarding his former clientÁs communications concerning drafting the will and the disposition of property.

1.6:620      Exception for Client Crime or Fraud

In Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 174, 757 A.2d 14 (2000) the Supreme Court held that the attorney-client privilege may be abrogated Ësolely upon a determination by the trial court that there is probable cause to believe that the privileged communications were made with the intent to perpetrate a civil fraud and that the communications were made in furtherance of that fraud.Ó That the privilege is abrogated if the communications Ëare made to counsel in respect to the commission of some intended crime . . .Ó had long been the law in Connecticut. Supplee v. Hall, 75 Conn. 17, 22-23, 52 A.2d 407 (1902). In Bersani v. Bersani, 41 Conn.Supp. 252, 565 A.2d 1368, (Conn.Super. 1989), the court held that attorney client privilege was inapplicable to information imparted to an attorney by his client in the course of perpetrating a fraud on the court. The court held that an attorneyÁs refusal to disclose information regarding the whereabouts of his clients and her children was a fraud on the court. Specifically, by refusing to inform the court of his clientÁs whereabouts, the attorney assisted his client in violating a court order granting temporary custody of the children to the husband.

1.6:630      Exception for Lawyer Self-Protection

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:640      Exception for Fiduciary-Lawyer Communications

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:650      Exception for Organizational Fiduciaries

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:660      Invoking the Privilege and Its Exceptions

In Informal Opinion 90-28 (1990), a U.S. Attorney issued a subpoena to the inquiring lawyer demanding that he appear and testify at a Grand Jury and to bring certain records and documents regarding one of the attorneyÁs clients. The Committee opined that Rule 1.6(a) requires a lawyer, who is called as a witness to testify about a client (without that clientÁs consent), to invoke the attorney-client privilege when it is applicable. The Committee suggested that the attorney should (1) notify the client whose affairs are the target of the subpoena and (2) assert the attorney-client privilege unless and until ordered to disclose the information by the appropriate tribunal.

In Informal Opinion 92-28 (1992), the Internal Revenue Service issued a summons upon an attorney requesting certain information contained in the attorneyÁs trustee accounts (i.e., bank statements for all trustee accounts, trustee journals, schedule showing where all deposits to trustee accounts were disbursed, and supporting documentation including cancellation checks and invoices). The Opinion set forth the appropriate course of action: (1) notify each client whose confidential information is subject to the summons and give the client the opportunity to consider consenting to disclosure independently or with an independent attorney; (2) determine whether there are matters subject to the attorney-client privilege, which have not been waived by the clients; (3) invoke the attorney-client privilege on these matters before the IRS; (4) comply with a final order of a court of competent jurisdiction requiring disclosure of the information.

1.6:700   Lawyer Work-Product Immunity

Primary Connecticut References: CT Rule 1.6
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.6:710      Work-Product Immunity

The work product rule safeguards an attorneyÁs Ëinterviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible items.Ó Ullman v. State, 230 Conn. 698, 714, 647 A.2d 324, 332, (1994)(quoting Barksdale v. Harris, 30 Conn.App. 754, 760, 622 A.2d 597 (1993)).

1.6:720      Ordinary Work Product

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:730      Opinion Work Product

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:740      Invoking Work-Product Immunity and Its Exceptions

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.6:770      Exception for Crime or Fraud

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.