A unanimous ruling Monday by the Connecticut Supreme Court in a case involving a prominent lawyer-lobbyist, former House Speaker Thomas D. Ritter, seems to narrow the circumstances when a lawyer’s business or political advice is protected by lawyer-client privilege.
The court concluded that the Freedom of Information Commission applied the wrong standard in considering whether to order a regional trash agency to release communications with Ritter, an agency consultant who is a lawyer-lobbyist in charge of a government affairs practice for the law firm, Brown Rudnick.
The opinion was written by Justice Andrew McDonald, no stranger to dealing with lawyer-lobbyists in his former career as a state senator, including a stint as co-chair of the legislature’s Judiciary Committee. He also is former counsel to Gov. Dannel P. Malloy.
“This court has long recognized the principle that ‘not every communication between attorney and client falls within the (attorney client) privilege,’ ” McDonald wrote. “Nonetheless, we have not previously had occasion to squarely address the specific situation in which attorneys give business or other nonlegal professional advice to their clients.”
The McDonald opinion directs the commission to adopt a “primary purpose” standard used in other jurisdictions: To be privileged, the non-legal advice must be integral to a communication whose primary purpose was legal.
“There is broad consensus in other jurisdictions that, ‘if the non-legal aspects of the consultation are integral to the legal assistance given and the legal assistance is the primary purpose of the consultation, both the client’s communications and the lawyer’s advice and assistance that reveals the substance of those communications will be afforded the protection of the privilege,’ ” McDonald wrote.
The ruling comes in an FOI fight that is a byproduct of a lawsuit by Matthew J. Hennessy accusing the defunct Connecticut Resource Recovery Agency of improperly choosing Brown Rudnick over him for a three-year contract to be the liaison to the municipalities that sent their trash to the CRRA.
CRRA ceased to exist in 2014 and its responsibilities and assets are now controlled by a successor public authority, the Materials Innovation and Recycling Authority. Michael C. Harrington, a lawyer representing Hennessy, requested all emails between CRRA and two lawyers, Ritter and the authority’s counsel, Peter Boucher, looking for information beneficial to his case.
The authority had released about 2,000 emails to Harrington, but denied another 130, saying they contained legal advice and were subject to the lawyer-client privilege. In 2013, the Freedom of Information Commission sided with the authority after privately reviewing the contested emails.
But the high court observed that on some of the withheld communications, Ritter and Boucher were merely copied and were neither the addressee or the originator.
“Nor did the commission appear to give any weight to the fact that the evidence clearly established that Ritter’s primary role was not as an attorney, but as a consultant and liaison,” McDonald wrote. “Although we agree with the commission that Ritter could provide legal advice, his primary role providing other services would seem to require a clear basis to conclude that information was being conveyed to him for the purpose of having him act in the role of legal advisor or that he was providing a legal opinion.”
As the court noted, the commission applied a four-part test: ‘‘(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 or 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.’’
The commission concluded that Ritter had provided both municipal liaison services and legal advice, even if he was hired as liaison and not as a lawyer.
The Supreme Court ordered the Freedom of Information Commission to go back and apply the “primary purpose test” to the withheld communications, saying some clearly should be released.
Both Hennessey and Daniel J. Krisch, the lawyer representing CRRA, called the decision significant.
“This idea that lawyer-lobbyist can’t use lawyer client privilege when they are acting primarily as lobbyists, that’s the first time a Connecticut court has done that,” Hennessy said.
“I think that it clarifies what had been a slightly unsettled area of law in Connecticut,” Krisch said. “I don’t think it just applies to lawyer-lobbyists.”
Kirsch said he expects the test will be used to determine the extent of privilege in any of the circumstances when lawyers are offering non-legal advice.
“Lawyers can just give business advice and can be a businessman and not just a lawyer,” he said. “There are situations where lawyers do wear different hats.”
Ritter declined to comment, noting that neither he nor Brown Rudnick are a party to Hennessy’s lawsuit or Harrington’s FOI challenge.