Conn. R. Evid. 5-2
Communications when made in confidence between a client and an attorney for the purpose of seeking or giving legal advice are privileged.
Conn. Code. Evid. 5-2
COMMENTARY
The attorney-client privilege is a privilege protecting confidential communications between an attorney and client for the purpose of seeking or giving legal advice. Blumenthal v. Kimber Mfg. Inc., 265 Conn. 1, 10, 826 A.2d 1088 (2003); Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); Goddard v. Gardner, 28 Conn. 172, 175 (1859). The term "client'' also includes prospective clients. See Rules of Professional Conduct 1.18. "Because the application of the attorneyclient privilege tends to prevent the full disclosure of information and the true state of affairs, it is both narrowly applied and strictly construed.'' Harrington v. Freedom of Information Commission, 323 Conn. 1, 12-13, 144 A.3d 405 (2016); see also PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn. 279, 330, 838 A.2d 135 (2004).
The privilege protects both the confidential giving of advice by an attorney and the providing of information to the attorney by the client or the client's agent. Metro Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52, 730 A.2d 51 (1999); State v. Cascone, 195 Conn. 183, 186-87, 487 A.2d 186 (1985). To be protected, the communications must be in connection with and necessary for the seeking or giving of legal advice. PSE Consulting, Inc. v. Frank Mercede & Sons, Inc., supra, 267 Conn. 329; Ullman v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994). The privilege belongs to the client and usually can only be waived with the client's consent. See Rules of Professional Conduct 1.6; but see Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 171, 757 A.2d 14 (2000) (discussion of crime fraud exception contained in Rule 1.6 of Rules of Professional Conduct).
The privilege does not protect communications made in the presence of or made available to third parties. State v. Burak, 201 Conn. 517, 526, 518 A.2d 639 (1986); State v. Gordon, 197 Conn. 413, 423-24, 504 A.2d 1020 (1985). There are various exceptions to this rule where communications to or in the presence of a third party will be protected by the privilege. This includes: where the third party is deemed to be an agent or employee of the client or attorney who is involved with or necessary to the giving or effectuating of the legal advice; State v. Gordon, supra 424; communications made to or in the presence of employees of the attorney (paralegals, secretaries, clerks); Goddard v. Gardner, supra, 28 Conn. 175; or experts retained by counsel; State v. Taste, 178 Conn. 626, 628, 424 A.2d 293 (1979); Stanley Works v. New Britain Development Agency, 155 Conn. 86, 94-95, 230 A.2d 9 (1967); or certain officers and employees of the client, including inhouse counsel. Shew v. Freedom of Information Commission, 245 Conn. 149, 158 n.11, 714 A.2d 664 (1998). Also, communications made to other clients or counsel who have an established common interest in the prosecution or defense of an action can be protected. State v. Cascone, supra, 195 Conn. 186.
Also, confidential communications with a governmental attorney in connection with civil or criminal cases or legislative and administrative proceedings are privileged. General Statutes § 52-146r. The privilege can be waived when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication or specifically places in issue some matter concerning the attorney-client relationship (e.g. claim of malpractice). See Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 52-53, 730 A.2d 51 (1999); Pierce v. Norton, 82 Conn. 441, 445-47, 74 A. 686 (1909); see also Rules of Professional Conduct 1.6(d). If the privileged communication is later disclosed to a third party, the privilege is waived unless the disclosure is shown to be inadvertent. See Harp v. King, 266 Conn. 747, 767-70, 835 A.2d 953 (2003).
The common law has long recognized that making of a statement through an interpreter to one's own attorney does not waive or abrogate the attorney-client privilege due to the presence of the interpreter. See State v. Christian, 267 Conn. 710, 749, 841 A.2d 1158 (2004); Olson v. Accessory Controls & Equipment Corp., supra, 265 Conn. 1; God dard v. Gardner, supra, 28 Conn. 175-76; see also General Statutes § 52-146l.
There is nothing in the law that would indicate that this definition of the privilege is not applicable to other common-law or statutory privileges. Thus, whenever a deaf or non-English speaking person communicates through an interpreter to any person under such circumstances that the underlying communication would be privileged, such person should not be compelled to testify as to the communications. Nor should the interpreter be allowed to testify as to the communication unless the privilege has been waived.