Opinion
FBTCV176065699S
09-19-2019
Robert MARINO v. UROLOGICAL ASSOCIATES OF BRIDGEPORT, P.C. et al.
UNPUBLISHED OPINION
OPINION
STEWART, J.
Plaintiff Robert Marino and non-party witness Julia Eckman move for the entry of a protective order preventing any discovery from Eckman regarding communications she had with any employee, agent or servant of the law firm of Silver Golub & Teitell, LLP (SGT) on the basis that those communications are protected by the attorney-client privilege. Defendants Urological Associates of Bridgeport, P.C. and Edward Paraiso, M.D. oppose the entry of a protective order on the grounds that Eckman was not a client of SGT and that therefore communications to which she was privy are not privileged. For the reasons that follow, the court grants the motion in part.
FACTUAL BACKGROUND
The plaintiff brought this action against the defendants for medical malpractice arising out of a robotic-assisted laparoscopic prostatectomy procedure that allegedly resulted in permanent and significant injuries to the plaintiff. At all times relevant to this action, Eckman was and still is the plaintiff’s live-in companion, significant other and life partner. Pl.’s Mot. for Protective Order, Ex. A, Eckman Aff. ¶¶6-8. They were not married at the time of the incident. Pl.’s Mot. for Protective Order. Eckman was present when the plaintiff learned of his biopsy results that led to the laparoscopic procedure at issue. Pl.’s Mot. For Protective Order, Ex. B, Marino Dep. She also was present at the hospital throughout the procedure and was the person to whom medical personnel spoke when there were complications during the procedure. Id. She was present with the plaintiff throughout his hospitalization and communicated with health care providers regarding his care and treatment. Pl.’s Mot. for Protective Order.
The plaintiff and Eckman met together with Attorneys Teitell and Allocca of SGT for legal advice and assistance relating to bringing this action. Eckman Aff. ¶¶9-11. Eckman states in her affidavit that "[a]t the time of my first meeting with Attorneys Teitell and Allocca, I was unaware of what my role, involvement and/or participation would be in the above-captioned matter. It was also my understanding that plaintiff Robert Marino was unaware of what my role, involvement and/or participation would be in the above-captioned matter." Id., ¶12. She goes on to testify that she understood and believed that SGT was representing both the plaintiff and her in all matters relating to this action, and that as a result, she "sought legal advice and assistance from Attorneys Teitell and Allocca as to my role, involvement and participation in the present matter." Id., ¶¶13-14.
This action was commenced with Marino as the only plaintiff. Eckman is not a party to the action. She was identified in interrogatory responses as a witness. Defs.’ Objections to Pl.’s Mot. for Protective Order, Ex. A, Pl.’s Resp. to Defs.’ Interrogs. p. 21-22. After she was identified, the defendants sought to depose "Mrs. Marino." PL’s Mot. for Protective Order, Ex. C. SGT clarified that Eckman was not married to the plaintiff and coordinated the deposition dates. The defendants sent the deposition notice and document request for Eckman to SGT. Pl.’s Mot. for Protective Order, Ex. D. SGT filed an objection to the document requests, signing on behalf of both the plaintiff and Eckman. Pl.’s Objection to Production Req. Appended to the Dep. Notice of Julia Eckman.
Eckman’s deposition went forward on March 15, 2019. Prior to the deposition, Eckman met at least once with Attorney Allocca to prepare for the deposition. Eckman Aff. ¶16. At the deposition, Eckman was accompanied by Attorney Allocca. Id., ¶18. During the deposition, defense counsel inquired about communications Eckman had with SGT during the initial meeting and prior to and during the deposition. Attorney Allocca instructed Eckman not to answer these questions on the grounds of attorney-client privilege. The parties agreed to address these issues through this motion for protective order. Although SGT filed the motion for protective order on behalf of both the plaintiff and Eckman, SGT has not filed an appearance on behalf of Eckman
LEGAL ANALYSIS
Practice Book § 13-5 provides that this court may, for good cause shown, protect the plaintiff and Eckman with an order: "(1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place ... [or] (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters."
The party seeking the protective order bears the burden of showing good cause, and whether or not good cause exists depends on the facts and circumstances of each particular case. Heisenger v. Cleary, Superior Court, judicial district of Hartford, Docket No. CV-12-6049497-S (July 29, 2014, Sheridan, J.) (58 Conn.L.Rptr. 658) (granting motion for protective order on basis of attorney-client privilege for non-party opponent); Carrier Corp. v. Home Ins. Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-88-352383-S (February 11, 1992, Schaller, J.) (6 Conn.L.Rptr. 3). "Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereo typed and conclusory statements." Welch v. Welch, 48 Conn.Supp. 19, 20, 828 A.2d 707 (2003).
"Connecticut has a long-standing, strong public policy of protecting attorney-client communications." Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999). Our Supreme Court has elaborated on that public policy: "[The 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 ... 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." (Citations omitted; internal quotation marks omitted.) Id., 52. "[I]f the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all." Upjohn Co. v. United States, 449 U.S. 383, 393 (1981). "[E]ven the threat of disclosure would have a detrimental effect on attorneys’ ability to advocate for their clients while preserving their ethical duty of confidentiality." Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., supra, 249 Conn. 48. To carry out this public policy, Practice Book § 13-2 bars the discovery of attorney-client privileged communications. Therefore, the privilege can be good cause for the issuance of a protective order if the plaintiff and Eckman have established that it applies here.
The burden of proving each element of the privilege, by a fair preponderance of the evidence, is on the plaintiff and Eckman as the parties asserting it. PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004). They must "provide more than conclusory language, generalized allegations or mere arguments of counsel. Rather, a sufficiently detailed record must reflect the reasons why [the privilege] applies." New Haven v. Freedom of Information Commission, 205 Conn. 767, 775-76 (1988).
The plaintiff and Eckman must establish these elements of the privilege: (1) the attorney participating in the communication must be acting in a professional capacity as an attorney; (2) the communication must be between the attorney and the client; (3) the communication must be for the purpose of providing legal advice; and (4) the communication must be made in confidence. Lash v. Freedom of Information Commission, 300 Conn. 511, 516, 14 A.3d 998 (2011). The defendants challenge two elements in particular: that any of the communications were between an attorney and a client and that the communications at the initial meeting were made in confidence.
I. THE INITIAL INTAKE MEETING
As detailed above, the plaintiff and Eckman met together with Attorneys Teitell and Allocca of SGT for legal advice and assistance relating to bringing this action. Eckman Aff. ¶¶9-11. Eckman states in her affidavit that when they attended that meeting, neither she nor the plaintiff were aware of what her role in this litigation would be, and that she "sought legal advice and assistance from Attorneys Teitell and Allocca as to [her] role, involvement and participation in the present matter." Id., ¶¶12-14. Based on this testimony, the court finds that at that initial meeting, both the plaintiff and Eckman were prospective clients. As such, the attorney-client privilege applies to communications both of them had with SGT during that meeting.
Rule of Professional Conduct 1.18, entitled "Duties to Prospective Client," states in subsection (a) that "[a] person who consults with a lawyer concerning the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client." Subsection (b) provides that "[e]ven when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client." The rule’s commentary recognizes that prospective clients may disclose information to a lawyer or rely on a lawyer’s advice, and therefore "prospective clients should receive some but not all of the protection afforded clients."
The Restatement (Third), The Law Governing Lawyers (2000) also provides that the attorney-client privilege applies to communications between an attorney and a prospective client. Section 15, entitled "A Lawyer’s Duties to a Prospective Client," provides in relevant part: "(1) [w]hen a person discusses with a lawyer the possibility of their forming a client-lawyer relationship for a matter and no such relationship ensues, the lawyer must: (a) not subsequently use or disclose confidential information learned in the consultation." Comment b to that section sets forth the rationale: "Prospective clients are like clients in that they often disclose confidential information to a lawyer, place documents or other property in the lawyer’s custody, and rely on the lawyer’s advice." Comment c states that "the attorney-client privilege attaches to communications of a prospective client." In Section 70, comment c, entitled "[a]n initial consultation," the Restatement states: "The privilege protects prospective clients- persons who communicate with a lawyer in an initial consultation but whom the lawyer does not thereafter represent- as well as persons with whom a client-lawyer relationship is established." See also Restatement (Third), The Law Governing Lawyers § 72 cmt. d (2000).
There is limited Connecticut case law regarding whether the privilege applies to initial meetings such as the one Eckman and the plaintiff attended with SGT. In Palomba v. Sullivan, a Superior Court held that at the initial meeting before filing suit, the attorney represented the mother and two sisters of the decedent, even though only one sister was the administrator of the estate who ultimately became the named plaintiff Palomba v. Sullivan, Superior Court, judicial district of Waterbury, Docket No. CV- 95-0127743 (December 29, 1998, Pellegrino, J.) (23 Conn.L.Rptr. 556). Quoting from another Superior Court opinion, the Palomba court focused on the importance of protecting communications at initial meetings: "It is not the rendering of legal advice that establishes the attorney-client relationship. If that were the case, the initial communications between the client and attorney, those that are often the most sensitive and most in need of confidentiality, would be unprotected. Rather it is the client’s seeking of legal advice ... that establishes the relationship." (Internal quotation marks omitted.) Id., quoting Shew v. Freedom of Information Commission, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-539639 (September 19, 1995, Maloney, J.) (15 Conn.L.Rptr. 309), aff’d on other grounds, 245 Conn. 149, 714 A.2d 664 (1998)).
The Superior Court in Shew held that an attorney’s witness interviews were protected by the attorney-client privilege even though the attorney did not render legal advice to the witnesses. Shew v. Freedom of Information Commission, supra, Docket No. CV-539639. This holding was affirmed on appeal. 245 Conn. 157-58.
Based on its holding that the privilege applied to the initial meeting, the Palomba court granted a motion for protective order to prevent the sister who was not a party to the lawsuit from having to answer deposition questions about statements made at that meeting. See also Kroha v. Lamonica, Superior Court, Docket No. CV-98-0160366-S (January 3, 2001, Sheldon, J.) (denying motion to compel production of privileged journal that plaintiff wife showed her non-party husband for the purpose of a mutual consultation with counsel). Similarly, this court holds that Eckman, at the time of the initial meeting, was at least a prospective client, and she may assert the attorney-client privilege as to communications she made and made in her presence at that meeting.
The plaintiff, who ultimately retained SGT and brought this litigation, also may assert the privilege as to communications made at the initial meeting. Eckman’s presence at that meeting does not destroy the privilege. Although statements made in the presence of a third party usually are not privileged because there is no reasonable expectation of confidentiality, the plaintiff and Eckman have sustained their burden of establishing that they reasonably expected their communications at the initial meeting to remain confidential. According to Eckman’s Affidavit, they both went into the meeting seeking legal advice. "When two or more people consult an attorney together on a matter of joint interest, these competing considerations are normally resolved by allowing their communications to be privileged as to the outside world, though not as to each other in a later controversy between themselves." State v. Cascone, 195 Conn. 183, 186-87, 487 A.2d 186 (1985), cert. denied, 203 Conn. 808 (1987). There is no evidence here of any controversy between the plaintiff and Eckman.
If Eckman’s presence in the meeting was necessary to the consultation, the plaintiff would have had a reasonable expectation of confidentiality. State v. Cascone, supra, 195 Conn. 186 n.3. The plaintiff and Eckman have not submitted any evidence to support this basis for the privilege. Moreover, no one has asserted that the meeting was protected by the attorney work product doctrine.
Our Supreme Court and the United States Court of Appeals for the Second Circuit have recognized that, even after a controversy develops or an attorney discloses to a prospective client that he already represents a party with an adverse interest, statements made before those events may be privileged. In State v. Cascone, two criminal defendants jointly retained the same defense lawyer. Id., 186. During a conference attended by both defendants in the lawyer’s office, one of the defendants allegedly made a statement exculpating the other defendant. Id. The Supreme Court concluded that the statement was privileged when made and that the privilege was not destroyed merely because each of the defendants later retained new counsel. Id., 187.
The Supreme Court ultimately concluded that the privilege should not protect the exculpatory statement at trial because the benefit of disclosure outweighed any injury to the attorney-client relationship. State v. Cascone, supra, 195 Conn. 189.
In United States v. Dennis, 843 F.2d 652, 656-57 (2d Cir. 1988) (applying the Connecticut law of privilege), the United States Court of Appeals for the Second Circuit held that initial statements made by one defendant to another defendant’s counsel were privileged, but that the privilege may have ended when the attorney told the co-defendant that he could not represent him because he already was representing an adverse co-defendant and that statements made after that disclosure could be subject to cross examination. The court also held that the privilege could have ended when the attorney brought the co-defendant’s father into the room as a witness. Id., 657. The court held that the "key" as to whether the privilege applied was the "intent of the client and whether he reasonably understood the conference to be confidential." Id. On the other hand, "[i]f the client understood that the attorney refused to act for him and that the attorney was retained by another person in an adverse position, the privilege does not apply." Id. By contrast, Eckman states in her affidavit that she understood the initial meeting to be confidential. There is no evidence that Eckman and the plaintiff were or are adverse to one another or that the SGT attorneys told her that they refused to represent her. Based on the Rules of Professional Conduct, the Restatement and Connecticut case law, this court holds that at the initial meeting with SGT, Eckman was a prospective client and that she and the plaintiff may invoke the attorney-client privilege as to communications at that meeting.
The plaintiff and Eckman also argue that the privilege should apply based on the common interest doctrine. The court holds that doctrine is not applicable here where there is only one attorney. Section 76 of the Restatement (Third) recognizes that the privilege may apply to two or more clients who have retained separate lawyers and who have a "common interest in a litigated or nonlitigated matter." See, e.g., Hubbell v. Ratcliffe, Superior Court, judicial district of Hartford, Docket No. CV- 08-403824-S (November 8, 2010, Shapiro, J.) (50 Conn.L.Rptr. 856) (finding a common interest among trustees and their counsel and a corporation and its counsel). Notably, comment d to § 76 indicates that a person not represented by counsel is not protected by the doctrine. While § 75, which discusses the privilege for co-clients of a single attorney, appears to be more applicable here, the plaintiff and Eckman have not established that Eckman became a client from after the initial meeting until Eckman’s deposition was noticed. Accordingly, based on the present record, the court cannot say that the plaintiff and Eckman were co-clients so as to protect any communications that occurred after the initial intake meeting at SGT.
II. PREPARATION FOR AND DEFENSE OF THE DEPOSITION
The plaintiff and Eckman also argue that Eckman became a client of SGT for purposes of preparing for and testifying at her deposition. An individual becomes a client upon the formation of an attorney-client relationship: "An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession." (Internal quotation marks omitted.) Distefano v. Milardo, 276 Conn. 416, 422, 886 A.2d 415 (2005). The burden of proving that there is an attorney-client relationship is on the party claiming the existence of such a relationship. Solomon v. Aberman, 196 Conn. 359, 384, 493 A.2d 193 (1985). The Restatement provides that there is an attorney-client relationship when "(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services." Durante v. Martinez, Superior Court, judicial district of New Haven, Docket No. CV-08-4043410-S (July 12, 2012) quoting Restatement (Third) of the Law Governing Lawyers § 14.
The defendants argue first that Eckman is not a client of SGT because she is not a named party to this action. The fact that she is not a named party does not preclude the possibility that she could be represented by counsel and assert the attorney-client privilege. The Practice Book rules regarding depositions speak in terms of a "person," and other Superior Courts have ruled on discovery motions in which non-parties have asserted the privilege. Practice Book § 13-1; see also Heisenger v. Cleary, supra, 58 Conn.L.Rptr. 658 (granting motion for protective order filed by plaintiff and non-party witness); Hubbell v. Ratcliffe, supra, 50 Conn.L.Rptr. 856 (denying motion to compel documents that implicated a non-party’s attorney-client privilege).
The defendants also argue that Eckman’s subjective belief is not sufficient to establish an attorney-client relationship. It is true that her "subjective belief that an attorney-client relationship exists, standing alone, cannot create such a relationship." Durante v. Martinez, supra, Docket No. CV-08-4043410-S, quoting 7 Am.Jur.2d Attorneys at Law § 137. The only evidence the court has before it for the period after the initial meeting and before the defendants noticed Eckman’s deposition is her subjective belief, and accordingly, the court cannot find that she had an attorney-client relationship with SGT during that timeframe.
As to the deposition, however, the plaintiff and Eckman have submitted more evidence than Eckman’s subjective belief. Her affidavit establishes that she "met with Attorney Allocca privately on at least one other occasion to seek legal advice and assistance regarding my deposition in this matter." Eckman Aff. ¶16. Moreover, the defendants served the deposition notice and document request for Eckman on SGT. Pl.’s Mot. for Protective Order, Ex. D. There is no evidence that they served her with a subpoena as an unrepresented non-party witness. After receiving that deposition notice, SGT filed an objection to the document requests, signing on behalf of both the plaintiff and Eckman. Pl.’s Objection to Production Req. Appended to the Dep. Notice of Julia Eckman. At the deposition, Attorney Allocca accompanied Eckman and acted as her attorney in the deposition. Eckman Aff. ¶18. The court finds that these facts establish that there was an attorney-client relationship between Eckman and SGT for her deposition, including preparation for that deposition. Eckman sought and received the advice and assistance of SGT in connection with her deposition. Distefano v. Milardo, supra, 276 Conn. 422. See also LaFaive v. DiLoreto, 2 Conn.App. 58, 64-66, 476 A.2d 626, cert. denied, 2 Conn.App. 58 (1984) (affirming trial court for blocking questions of trial witness regarding privileged discussion with her attorney during break in testimony).
The defendants further argue that there is no relationship because SGT has not filed an appearance on behalf of Eckman. While the better practice might have been for SGT to file an appearance for Eckman once it filed its objection to the document requests and this motion for protective order, this court cannot find that its failure to do so implies that there is no attorney-client relationship between Eckman and SGT.
Chapter 3 of the Practice Book speaks of appearances being filed on behalf of parties to litigation.
The defendants also point out that the plaintiff and Eckman have not proved that Eckman entered into a retainer agreement, fee agreement or contract for services. "Evidence of either a retainer agreement or a contract between the parties is relevant to the determination of its existence." Distefano v. Milardo, supra, 276 Conn. 422. However, "[t]he relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of the parties." (Internal quotation marks omitted.) Statewide Grievance Committee v. Paige, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-03-0198335-S (July 14, 2004, Hiller, J.), quoting 7 Am.Jur.2d Attorneys at Law § 136 (2003). The court finds that the conduct detailed above is sufficient to prove that there is an attorney-client relationship for the deposition.
Finally, the defendants have not sustained their burden of showing that the privilege does not apply because any representation of both the plaintiff and Eckman would be directly adverse in violation of Rule of Professional Responsibility 1.7. See Blumenthal v. Kimber Manufacturing, Inc., 265 Conn. 1, 18, 826 A.2d 1088 (2003) ("the burden of proof is on the party seeking to pierce the privilege"). They contend that the representation would be directly adverse because plaintiff’s counsel might have to cross examine Eckman. Defs.’ Objections to Pl.’s Mot. for Protective Order p. 10, citing Connecticut Bar Association Committee on Professional Ethics, Informal Opinion No. 97-6 (1997). They have not proffered any reason why plaintiff’s counsel would have to cross examine Eckman during the course of her deposition.
CONCLUSION
For the foregoing reasons, the court finds that for purposes of the initial meeting with SGT, Eckman was a prospective client of SGT and that any communications between her or the plaintiff with SGT during that meeting are protected by the attorney-client privilege. The court further finds that even though Eckman did not become a client during that meeting, her presence at the meeting did not destroy the privilege for the plaintiff. However, the court finds that the plaintiff and Eckman have not met their burden of proving that an attorney-client relationship was formed between SGT and Eckman until Eckman’s deposition was noticed. At that time, a relationship was formed, and communications made to prepare for the deposition and during the deposition and in connection with this motion for protective order are privileged.
Therefore, the court issues the following protective order: ORDERED that the defendants may not inquire of the plaintiff or Eckman or their attorneys at SGT as to attorney-client privileged communications made during the initial meeting at SGT or made in connection with Eckman’s deposition.