GOULD, LARSON, BENNET, WELLS v. Panico

• Decision Date: 12 April 2005
• Docket Number: No. 17279.,17279.
• Citation: 273 Conn. 315,869 A.2d 653
• Court: Connecticut Supreme Court
• Parties: GOULD, LARSON, BENNET, WELLS AND MCDONNELL, P.C., et al. v. Joseph A. PANICO et al.

869 A.2d 653

273 Conn. 315

GOULD, LARSON, BENNET, WELLS AND MCDONNELL, P.C., et al. v. Joseph A. PANICO et al.

No. 17279.

Supreme Court of Connecticut.

Argued February 8, 2005.

Decided April 12, 2005.

Ronald J. Piombino, Madison, for the appellant (defendant Iris N. Panico).

John S. Bennet, Essex, for the appellees (plaintiffs).

SULLIVAN, C.J., and BORDEN, KATZ, PALMER and VERTEFEUILLE, Js.

Opinion

KATZ, J.

The principal issue on appeal is whether, in the context of a will contest, the exception to the attorney-client privilege, as recognized by this court in Doyle v. Reeves, 112 Conn. 521, 152 A. 882 (1931), that communications between a decedent and the attorney who drafted the executed will may be disclosed, applies when the communications do not result in an executed will. Specifically, we consider whether, in a probate proceeding in the course of a dispute among heirs, an attorney may be compelled to disclose testamentary communications that have not culminated in an executed will. We conclude that the exception to the privilege does not apply when the communications do not culminate in the execution of a will.

The record discloses the following undisputed facts. In February, 1993, the decedent, Edward Panico, contacted the plaintiff law firm, Gould, Larson, Bennet, Wells and McDonnell, P.C. (law firm), concerning his will and estate plan. The law firm previously had provided occasional legal advice to the decedent. The February, 1993 consultations resulted in the execution of a will by the decedent. In October, 2002, the decedent, who then was suffering from a terminal illness, contacted the law firm regarding further will and estate consultations. On October 7, 2002, the plaintiff Helen B. Bennet, then an associate with the law firm, went to the decedent's home to provide consultation. They met privately, but no will ultimately was prepared or executed.

On October 22, 2002, the decedent executed a will drafted by Joseph A. Reda, a New York attorney who was not affiliated with the law firm. The decedent died on October 31, 2003, and a probate estate was opened in the Probate Court for the district of Westbrook. A dispute developed between the defendants, the decedent's heirs,¹ as between the 1993 will and the 2002 will. In the course of the probate proceedings, the law firm and Bennet² were subpoenaed to disclose the files concerning their consultations with the decedent and to have Bennet testify pertaining to her October, 2002 conversations with the decedent regarding the possible drafting of a will.³ The plaintiffs filed a motion to quash the subpoenas and a motion for a protective order, asserting that, because the 2002 consultations never had resulted in the drafting of a will, the communications were protected by the attorney-client privilege.⁴ The Probate Court determined that the communications at issue fell within a well recognized exception to the attorney-client privilege — that transactions between a decedent and his attorney leading up to the execution of a will are not privileged — and, therefore, the communications between the decedent and the plaintiffs were not protected. Accordingly, the Probate Court denied the motions and, pursuant to General Statutes § 45a-186, the plaintiffs appealed from that decision to the Superior Court.

The plaintiffs thereafter filed a motion for summary judgment, claiming that the attorney-client privilege prohibits both Bennet's testimony and the law firm's disclosure of documents concerning any consultation with the decedent that did not result in the preparation of an executed will. The defendants opposed the motion on the ground that, when there is an action between the devisees under the decedent's will and others who claim under it, the attorney-client privilege will not prevent the attorney with whom the decedent spoke from giving testimony, especially if the need for disclosure outweighs the potential chilling effect on such communication. According to the defendants, the close proximity in time between the decedent's consultation with the plaintiffs and his execution of a will two weeks thereafter constituted a compelling reason to be informed of the nature of the discussions in order to determine whether there existed undue influence over the decedent when he executed his last will.

The trial court determined that "the exception to the attorney-client privilege in will contests is limited to communications between the decedent and the attorney who actually drafted the instruments that were ultimately executed by the decedent." On the basis of the uncontested fact that, following Bennet's conversations with the decedent in 2002,⁵ the plaintiffs did not draft a will that ultimately was executed by the decedent, the trial court rendered summary judgment in the plaintiffs' favor, concluding that the motion for a protective order and the motion to quash the subpoenas should be granted. Iris N. Panico, one of the decedent's heirs; see footnote 1 of this opinion; appealed from the judgment of the trial court sustaining the plaintiffs' appeal.⁶

Panico makes the same argument that the defendants asserted at the trial court, claiming essentially that, in a will contest, the attorney-client privilege should not extend to protect a decedent's communications with his attorney even when those communications do not result in the preparation and execution of a will. Put another way, Panico contends that the exception to the privilege recognized by this court in Doyle v. Reeves, supra, 112 Conn. 521, 152 A. 882, that in a will contest, the communications between the decedent and the attorney who actually drafted the executed will may be disclosed, applies even when the communications have not resulted in an executed will. The plaintiffs respond by asking this court to determine whether they must testify or produce any documentation regarding the attorney-client communications the defendants seek with respect to the consultations with the decedent that did not result in an executed will. We determine, consistent with the trial court, that, when the communications between a decedent and his attorney do not result in an executed will, the communications do not fall within the exception to the attorney-client privilege and thus are confidential. To evaluate the parties' claims, we begin with the appropriate standard of review. "The standards governing our review of a trial court's decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46]." (Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000).

In the present case, the procedural history is undisputed, and the case distills to an issue under our common-law authority of how to determine the scope of the attorney-client privilege. "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. Doyle v. Reeves, [supra, 112 Conn. at 523, 152 A. 882]; Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 12.5." (Internal quotation marks omitted.) State v. Gordon, 197 Conn. 413, 423, 504 A.2d 1020 (1985); see also State v. Duntz, 223 Conn. 207, 241, 613 A.2d 224 (1992); State v. Burak, 201 Conn. 517, 526, 518 A.2d 639 (1986). "Connecticut has a long-standing, strong public policy of protecting attorney-client communications. See, e.g., Doyle v. Reeves, [supra, at 523, 152 A. 882] (quoting common-law rule embodied in 5 J. Wigmore, Evidence [2d Ed.1923] § 2292). 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." Metropolitan Life Ins. Co. v. Aetna Casualty & Surety Co., 249 Conn. 36, 48, 730 A.2d 51 (1999); accord Rules of Professional Conduct 1.6, commentary (stating that confidentiality is fundamental principle that encourages client to communicate fully and frankly). 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." Clute v. Davenport Co., 118 F.R.D. 312, 314 (D.Conn.1988). Indeed, this 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...