Harrington v. Freedom of Information Commission , 323 Conn. 1 ( 2016 )

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MICHAEL C. HARRINGTON v. FREEDOM OF
INFORMATION COMMISSION ET AL.
(SC 19586)
Rogers, C. J., and Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.*
Argued April 1—officially released September 6, 2016
Michael C. Harrington, with whom, on the brief, was
Jennifer A. Corvo, for the appellant (plaintiff).
Daniel J. Krisch, with whom, on the brief, was Daniel
E. LaBelle, for the appellee (defendant Connecticut
Resources Recovery Authority).
Paula Pearlman, for the appellee (named defendant).
Opinion
McDONALD, J. Clients call upon attorneys to provide
advice on a range of matters, some that may be purely
legal, some that may be purely nonlegal, and others
where the line between legal and nonlegal advice is
more nuanced. This case provides an opportunity to
address the circumstances under which communica-
tions relating to both nonlegal and legal advice may be
covered by the attorney-client privilege.
The plaintiff, Michael C. Harrington, appeals from the
trial court’s judgment dismissing his appeal from the
decision of the Freedom of Information Commission,1
which concluded that e-mails that the plaintiff sought
from the defendant Connecticut Resources Recovery
Authority2 fall within the exemption from disclosure
under the Freedom of Information Act (act) for commu-
nications subject to the attorney-client privilege. See
General Statutes § 1-210 (b) (10). We conclude that
the commission failed to apply the proper standard for
assessing the communications at issue, which include
communications that the commission characterized as
containing a mix of business and legal advice. There-
fore, the case must be remanded to the commission for
further proceedings.
The record reflects the following undisputed facts.
The defendant is a public agency for purposes of the
act. It assists Connecticut municipalities in managing,
recycling and disposing of their solid waste. See gener-
ally New Hartford v. Connecticut Resources Recovery
Authority, 291 Conn. 433, 438, 970 A.2d 592 (2009). In
late 2011, the plaintiff made a request to the defendant,
pursuant to the act, seeking disclosure of, among other
things: (1) all communications between Thomas Ritter
and the defendant’s staff and board of directors since
January 1, 2007; and (2) all communications between
Peter Boucher and the defendant’s staff and board of
directors since January 1, 2009. Ritter and Boucher are
both attorneys with law firms, Brown Rudnick LLP, and
Halloran & Sage LLP, respectively, which were under
contract to provide legal services to the defendant dur-
ing the periods at issue.3 Ritter and Boucher are also
registered lobbyists.4
The plaintiff filed a complaint with the commission
after the defendant failed to promptly produce the com-
munications requested. After preliminary proceedings
before the commission, the defendant provided many
documents to the plaintiff, but withheld hundreds of
others. Evidentiary hearings ensued before a commis-
sion hearing officer, where the parties contested
whether the withheld documents were exempt from
disclosure under the act’s exemption relating to the
attorney-client privilege.
Although the plaintiff recognized that the defendant
bore the burden of proof on this issue, he elected to
present his case first. The plaintiff offered exhibits, as
well as the testimony of Laurie Hunt, the defendant’s
director of legal services and the sole attorney on its
staff during the periods at issue. Hunt was the only
witness at the hearing. The evidence proffered estab-
lished the following facts. In 2006, the defendant’s presi-
dent, Thomas D. Kirk, sought approval from the
defendant’s board of directors to enter into an
agreement to retain Ritter as the defendant’s consultant
and community liaison. Kirk informed the board that the
defendant previously had been utilizing Ritter’s services
under a legal services agreement, even though Ritter’s
services had ‘‘not been of a purely legal nature.’’ One of
the board members sought clarification whether Ritter
was being hired as an attorney or a community liaison.
Kirk responded that Ritter was being retained as a con-
sultant and, in particular, a community liaison. Kirk
represented that the new arrangement would provide
more transparency and accuracy as to the services pro-
vided, as well as a cost benefit because Ritter would
be retained for a fixed fee rather than being paid at the
hourly rate under the legal services agreement.
Following the board’s approval, the defendant
entered into various service agreements with Ritter and
Brown Rudnick: a Host Community Liaison Services
Agreement in 2006; a Municipal Government Advisor
Services Agreement in 2007; and a Municipal Govern-
ment Liaison Services Agreement in 2009 (collectively,
liaison agreements). These liaison agreements desig-
nated Brown Rudnick, and Ritter specifically, as the
defendant’s ‘‘consultant.’’ One of these liaison
agreements described the scope of the consultant’s ser-
vices as, including, but not limited to, the following:
(a) ‘‘Provide [the defendant] with insight and out-
reach relative to [the defendant] and its interactions
with municipalities that are currently and/or that may
become hosts to the [the defendant’s] facilities and
pertinent or related groups and organizations that are
and/or may become affected by [the defendant’s] facili-
ties. . . .’’
(b) ‘‘Act as a community liaison for [the defendant]
to provide counsel and outreach to current and/or
potential host communities in connection with local
issues in the community and the state of Connecticut
in general.’’
(c) ‘‘Recommend to [the defendant] ways to improve
outreach to the current and/or potential host communi-
ties . . . .’’
(d) ‘‘Provide counsel to [the defendant] to assist [the
defendant] with its critical goals in the current and/
or potential host communities, as well as develop and
enhance [the defendant’s] relationships with [these]
host communities.’’5
With one exception, Ritter’s services were billed
exclusively under these liaison agreements and were
invoiced as ‘‘General Business Advice.’’ The only excep-
tion was a special agreement, executed in 2011, under
which Ritter provided ‘‘legislative monitoring and
advice’’ while two bills were pending before the legisla-
ture that would have made substantial changes to the
operations of the defendant. Accordingly, subsequent
to the execution of the liaison agreements, there was
no evidence that Ritter ever billed the defendant for
providing ‘‘legal advice’’ under the liaison agreements,
that he ever billed the defendant under the legal services
agreement, or that he billed the defendant under the
hourly rate that was prescribed under the legal ser-
vices agreement.
Hunt testified, however, that the defendant had relied
on Ritter and Boucher for legal advice and that such
advice often had been provided. Hunt opined that legal
advice likely was being solicited in communications,
even when the only response to the communication
came from a person who was not an attorney. Hunt
speculated that legal advice may have been provided
in response to some e-mails through some channel other
than e-mail. In particular, she stated that ‘‘it’s also possi-
ble to solicit advice through an e-mail but to get a
response in a phone call. That frequently happens.’’
She further opined that services provided by Ritter for
‘‘monitoring legislation’’ were legal services, explaining
that the defendant has a ‘‘legal interest’’ in proposed
legislation that may affect it and that seeking advice
on pending legislation is a request for legal advice. Hunt
opined that an e-mail from Kirk to both Ritter and the
defendant’s director of public relations, indicating that
Kirk was going to have a meeting with legislators, would
be a solicitation of legal advice from Ritter but not the
director, under the view that ‘‘[s]ometimes it’s neces-
sary just to keep the lawyers up to speed on what’s
going on so that they can provide legal advice.’’
Hunt addressed two particular controversies in which
the defendant was involved, one of which had resulted
in several arbitration and judicial proceedings over a
period of years. She acknowledged that Ritter had never
entered an appearance in any case for the defendant,
including arbitration and administrative proceedings.
The defendant submitted two ‘‘exemption’’ logs to
the hearing officer, one each for the Ritter and Boucher
communications being withheld. The logs listed: the
author of each communication; the recipients (distin-
guishing addressees from persons who were copied);
attorneys advising the defendant in connection with
that communication (including attorneys associated
with law firms other than Brown Rudnick and Hal-
loran & Sage); the subject matter; and the statutory
exemption(s) that was being claimed. The subject mat-
ter was not stated in terms relating to the specific type
of legal advice sought, but instead listed general topics
such as draft testimony, legislative report, landfill siting
study, board member solicitations, or new energy legis-
lation.
Following an in camera review of the documents, the
hearing officer found that the documents consisted of:
(1) e-mails to/from Ritter or Boucher; and (2) e-mails
to/from others on which Ritter or Boucher were copied.
The hearing officer issued a proposed decision recom-
mending that the commission find that the documents
are exempt from disclosure under the attorney-client
privilege.
The commission subsequently voted to adopt the
hearing officer’s decision, despite some reservations
that were expressed about whether all of the documents
were privileged. In that decision, the commission deter-
mined that its legal analysis was guided by the four
part test set forth in Shew v. Freedom of Information
Commission, 245 Conn. 149, 158–59, 714 A.2d 664
(1998), for assessing whether a corporate or municipal
entity had established an attorney-client privilege: ‘‘(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.’’
(Footnote omitted; internal quotation marks omitted.)
The commission noted that ‘‘[c]ourts have recognized
that the attorney-corporate client privilege raises addi-
tional questions because lawyers in this context may
have mixed ‘business-legal’ responsibility which may
result in the blurring of business and legal advice,’’ and
stated that this court had ruled that the test under such
circumstances is whether such communications are
‘‘ ‘inextricably linked’ to the giving of legal advice.’’
(Emphasis omitted.)
The commission then concluded that, based on
Hunt’s testimony and a review of the documents, all
four prongs of the Shew test had been met as to each
communication withheld by the defendant. The com-
mission found that Ritter had provided both municipal
liaison services and legal advice, and determined that
it was not dispositive that he had been hired and paid
pursuant to a contract for the former. As to both Ritter
and Boucher, the commission found that ‘‘[the defen-
dant] was involved in at least two legal controversies,
and was the subject of proposed legislation that poten-
tially would have affected [the defendant’s] business,
and that such matters are the subject of the Ritter and
Boucher e-mails.’’ It further found that, during the four
and one-half year span of the communications, ‘‘[the
defendant’s] employees and [b]oard members regularly
communicated . . . via e-mail, with [the defendant’s]
legal counsel, including [Ritter and Boucher], for the
purposes of (1) seeking legal advice; and (2) keeping
counsel apprised of ongoing business developments,
with the expectation that the attorney would respond
in the event the matter raised a legal issue.’’ In light of
these findings, the commission concluded that ‘‘each
of the communications related to legal advice sought
by the [defendant] either from . . . Ritter, [Boucher]
or another attorney acting on behalf of [the defendant],
or both.’’ The commission acknowledged that certain
communications contained a mix of legal advice and
business advice, but concluded that these communica-
tions related to legal advice sought by the agency
because they were ‘‘ ‘inextricably linked’ to the giving
of legal advice.’’
The plaintiff appealed from the commission’s deci-
sion to the Superior Court, raising two claims: (1) the
commission had improperly substituted the judgment
of the hearing officer for its own because, according
to the plaintiff, several commissioners indicated that
they did not agree that all the documents were privi-
leged but nonetheless adopted the hearing officer’s
decision; and (2) various factors indicated that the com-
munications were not privileged. The court rejected
both the procedural and substantive claims. With
respect to the substantive claim, the court indicated
that it had conducted an in camera review of the docu-
ments and had found substantial evidence to support
the commission’s findings. The court rejected the plain-
tiff’s claim that the attorney-client privilege would not
shield communications between nonlawyers on which
Ritter was copied, concluding that there was substantial
evidence to support a finding that such communications
were made ‘‘as part of a design to keep the attorneys
involved in [the defendant’s] decision-making process.’’
The plaintiff appealed to the Appellate Court, renewing
its procedural and substantive claims, and we trans-
ferred the appeal to this court.
The plaintiff’s principal contention before this court
is that the commission improperly deemed the commu-
nications at issue to be covered by the attorney-client
privilege.6 He contends that the evidence demonstrates
that Ritter and Boucher were not consistently acting
in a professional capacity as attorneys for the defen-
dant, but rather were providing business advice, legisla-
tive advice, or lobbying services, to which the privilege
does not apply. He further contends that, to the extent
that the communications were motivated by more than
one purpose, they would not be shielded because (a)
legal advice must be the predominant or primary pur-
pose of the communications for them to be privileged;
and (b) any nonlegal advice must be inextricably linked
to legal advice, such that redaction of the latter would
not be possible. Finally, he contends that the privilege
would not extend to communications on which other
Brown Rudnick lobbyists were copied.
In considering these contentions, we are mindful that
‘‘Connecticut has a long-standing, strong public policy
of protecting attorney-client communications.’’ Metro-
politan Life Ins. Co. v. Aetna Casualty & Surety Co.,
249 Conn. 36, 48, 730 A.2d 51 (1999); see also Shew v.
Freedom of Information Commission, supra, 245
Conn. 157. ‘‘The privilege fosters full and frank commu-
nications between attorneys and their clients and
thereby promote[s] the broader public interests in the
observation of law and [the] administration of justice.’’
(Internal quotation marks omitted.) Olson v. Accessory
Controls & Equipment Corp., 254 Conn. 145, 157, 757
A.2d 14 (2000). Moreover, when a public agency is the
client, because ‘‘public officials are duty-bound to
understand and respect constitutional, judicial and stat-
utory limitations on their authority . . . their access
to candid legal advice directly and significantly serves
the public interest . . . .’’ In re County of Erie, 473
F.3d 413, 419 (2d Cir. 2007). At the same time, however,
‘‘non-disclosure impinges on open and accessible gov-
ernment.’’ Id.; see also Reed v. Baxter, 134 F.3d 351,
356 (6th Cir.) (recognizing competing values), cert.
denied, 525 U.S. 820, 119 S. Ct. 61, 142 L. Ed. 2d 48
(1998).
Because ‘‘the privilege has the effect of withholding
relevant information from the [fact finder], it applies
only where necessary to achieve its purpose. . . .
Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct.
1569, 48 L. Ed. 2d 39 (1976).’’ (Internal quotation marks
omitted.) Shew v. Freedom of Information Commis-
sion, supra, 245 Conn. 157–58. The burden of establish-
ing the applicability of the privilege rests with the party
invoking it. Director, Dept. of Information Technology
v. Freedom of Information Commission, 274 Conn.
179, 189, 874 A.2d 785 (2005); see also In re County of
Erie, supra, 473 F.3d 418. ‘‘Any privilege there may be
is not a blanket one. The limitation, in connection with
this communication, frames the special relationship
that must be found for each document separately con-
sidered.’’ (Internal quotation marks omitted.) Zenith
Radio Corp. v. Radio Corp. of America, 121 F. Supp.
792, 794 (D. Del. 1954). Because the application of the
attorney-client privilege tends to prevent the full disclo-
sure of information and the true state of affairs, it is
both narrowly applied and strictly construed. PSE Con-
sulting, Inc. v. Frank Mercede & Sons, Inc., 267 Conn.
279, 330, 838 A.2d 135 (2004); United States v. Mejia,
655 F.3d 126, 132 (2d Cir.), cert. denied sub nom. Rodri-
guez v. United States, U.S. , 132 S. Ct. 533, 181
L. Ed. 2d 37 (2011).
The same is true with our construction of exemptions
under the act. ‘‘[T]he overarching legislative policy of
[the act] is one that favors the open conduct of govern-
ment and free public access to government records.
. . . [I]t is well established that the general rule under
the [act] is disclosure, and any exception to that rule
will be narrowly construed in light of the general policy
of openness expressed in the [act]. . . . [Thus] [t]he
burden of proving the applicability of an exception [to
disclosure under the act] rests upon the party claiming
it.’’ (Citation omitted; internal quotation marks omit-
ted.) Lieberman v. Aronow, 319 Conn. 748, 754–55, 127
A.3d 970 (2015).
When a claim of attorney-client privilege is invoked
in an administrative proceeding, our review of a deter-
mination as to whether that privilege applies is gov-
erned by the Uniform Administrative Procedure Act,
General Statutes § 4-166 et seq. ‘‘Judicial review of an
administrative agency decision requires a court to deter-
mine whether there is substantial evidence in the admin-
istrative record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or questions of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion.’’ (Citations omitted; internal quotation marks
omitted.) Cadlerock Properties Joint Venture, L.P. v.
Commissioner of Environmental Protection, 253
Conn. 661, 676, 757 A.2d 1 (2000), cert. denied, 531 U.S.
1148, 121 S. Ct. 1089, 148 L. Ed. 2d 963 (2001).
Although the plaintiff raises numerous arguments,
our threshold, and ultimately dispositive, consideration
is the proper approach for assessing the applicability
of the attorney-client privilege when business or other
nonlegal professional advice is provided. This is a legal
rather than factual question. We therefore must con-
sider whether the commission acted unreasonably, arbi-
trarily, illegally, or in abuse of its discretion in
concluding that all of the communications that the
defendant withheld are covered by the attorney-client
privilege. See Lash v. Freedom of Information Com-
mission, 300 Conn. 511, 517, 520, 14 A.3d 998 (2011)
(citing this standard when reviewing documents and
determining that only reasonable conclusion commis-
sion could have drawn, had it applied proper standard,
was that documents were privileged); see also Olson
v. Accessory Controls & Equipment Corp., supra, 254
Conn. 156, 158 (distinguishing facts found from trier’s
legal conclusion as to whether report was made in confi-
dence and whether communications were inextricably
linked to giving of legal advice so as to bring them
within attorney-client privilege); cf. Director, Dept. of
Information Technology v. Freedom of Information
Commission, supra, 274 Conn. 187 (when case involves
applying well settled meaning of exemptions in § 1-210
[b] to facts of particular case, standard of judicial review
is whether commission’s factual determinations are rea-
sonably supported by substantial evidence in record
taken as whole).
This court has long recognized the principle that
‘‘[n]ot every communication between attorney and cli-
ent falls within the [attorney-client] privilege.’’ Ullmann
v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994). None-
theless, we have not previously had occasion to
squarely address the specific situation in which attor-
neys give business or other nonlegal professional advice
to their clients. Numerous other courts, however, have
confronted this issue. As one court explained: ‘‘The
communication must be made by the client to the attor-
ney acting as an attorney and not, e. g., as a business
advisor. . . . In sum, attorneys do not act as lawyers
when not primarily engaged in legal activities. . . .
[Moreover], it would seem obvious that business com-
munications cannot be insulated from discovery by vir-
tue of the mention of an attorney’s name, or their being
directed to an attorney.’’ (Citations omitted; internal
quotation marks omitted.) Barr Marine Products Co.
v. Borg-Warner Corp., 84 F.R.D. 631, 634–35 (E.D. Pa.
1979); accord Wachtel v. Health Net, Inc., 482 F.3d 225,
231 (3d Cir. 2007) (‘‘[B]ecause the purpose of the privi-
lege is to promote the dissemination of sound legal
advice, the privilege will extend only to advice which
is legal in nature. Where a lawyer provides non-legal
business advice, the communication is not privileged.’’);
Burden-Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003)
(‘‘[h]iring lawyers to do consultants’ work does not
bring a privilege into play’’); Matter of Feldberg, 862
F.2d 622, 626 (7th Cir. 1988) (‘‘[a] business that gets
marketing advice from a lawyer does not acquire a
privilege in the bargain’’); Fox News Network, LLC v.
United States Dept. of the Treasury, 911 F. Supp. 2d
261, 271 (S.D.N.Y. 2012) (‘‘[t]he attorney-client privilege
protects only legal advice, not economic, business, or
policy advice’’).
The line between legal advice and business advice,
however, is not always clear. ‘‘Fundamentally, legal
advice involves the interpretation and application of
legal principles to guide future conduct or to assess
past conduct. See generally 1 [P.] Rice, Attorney Client
Privilege in the United States [(2d Ed. 1999) § 7:9]. It
requires a lawyer to rely on legal education and experi-
ence to inform judgment. . . . But it is broader, and
is not demarcated by a bright line. . . . The modern
lawyer almost invariably advises his client upon not
only what is permissible but also what is desirable. And
it is in the . . . public interest that the lawyer should
regard himself as more than [a] predicter of legal conse-
quences. His duty to society as well as to his client
involves many relevant social, economic, political and
philosophical considerations. And the privilege of non-
disclosure is not lost merely because relevant nonlegal
considerations are expressly stated in a communication
which also includes legal advice.’’ (Citation omitted;
internal quotation marks omitted.) In re County of Erie,
supra, 473 F.3d 419–20, quoting United States v. United
Shoe Machinery Corp., 89 F. Supp. 357, 359 (D.
Mass. 1950).
Nonetheless, it is not enough for the party invoking
the privilege to show that a communication to legal
counsel relayed information that ‘‘might become rele-
vant to the future rendering of legal advice. Instead, the
communication must also either explicitly or implicitly
seek specific legal advice about that factual informa-
tion.’’ Valente v. Lincoln National Corp., Docket No.
3:09cv693 (MRK), 2010 WL 3522495, *3 (D. Conn. Sep-
tember 2, 2010); see also Simon v. G.D. Searle & Co.,
816 F.2d 397, 403–404 (8th Cir.) (‘‘A business document
is not made privileged by providing a copy to counsel.
. . . Client communications intended to keep the attor-
ney apprised of business matters may be privileged if
they embody an implied request for legal advice based
thereon.’’ [Internal quotation marks omitted.]), cert.
denied, 484 U.S. 917, 108 S. Ct. 268, 98 L. Ed. 2d 225
(1987); Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136,
144 (D. Del. 1977) (‘‘[c]lient communications intended
to keep the attorney apprised of continuing business
developments, with an implied request for legal advice
based thereon, or self-initiated attorney communica-
tions intended to keep the client posted on legal devel-
opments and implications may also be protected’’).
Just as this court has never specifically distinguished
business advice offered by an attorney from legal
advice, it has not addressed the application of the privi-
lege to communications containing or seeking both
legal and business advice, as was found to exist in the
present case. The primary flaw in the commission’s
approach to this question lies in its exclusive reliance
on the ‘‘inextricably linked’’ standard. That language,
however, originates from a case in which this court
stated that, ‘‘[a] communication from attorney to client
solely regarding a matter of fact would not ordinarily
be privileged, unless it were shown to be inextricably
linked to the giving of legal advice.’’ (Emphasis added.)
Ullmann v. State, supra, 230 Conn. 713; see, e.g., Olson
v. Accessory Controls & Equipment Corp., supra, 254
Conn. 158–64 (factual report prepared by environmen-
tal consulting firm retained by counsel to assist in
responding to order issued by Department of Environ-
mental Protection was inextricably linked to legal
advice on how to respond to order); Shew v. Freedom of
Information Commission, supra, 245 Conn. 157 (facts
elicited by attorney in investigation that informed basis
of legal advice rendered facts uncovered in that investi-
gation inextricably linked to that advice). This court has
never indicated that the ‘‘inextricably linked’’ standard
governs a determination whether a communication con-
taining or seeking both business and legal advice would
be privileged in its entirety.
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 communi-
cations will be afforded the protection of the privilege.’’7
(Emphasis in original; footnotes omitted.) 1 P. Rice,
Attorney-Client Privilege in the United States (Rev.
2015) § 7:4, pp. 1191–92; see also Lindley v. Life Invest-
ors Ins. Co. of America, 267 F.R.D. 382, 392 (N.D. Okla.
2010) (‘‘[w]here . . . the legal and business purposes
of the communication are inextricably intertwined, the
entire communication is privileged only if the legal pur-
pose outweighs the business purpose’’), aff’d in part
as modified, Docket No. 08-cv-0379-CVE-PJC, 2010 WL
1741407 (N.D. Okla. April 28, 2010); Neuder v. Battelle
Pacific Northwest National Laboratory, 194 F.R.D. 289,
292 (D.D.C. 2000) (‘‘[w]here business and legal advice
are intertwined, the legal advice must predominate for
the communication to be protected’’).
When the legal aspects of the communication are
incidental or subject to separation, the proponent of
the privilege may be entitled to redact those portions
of the communication. See In re County of Erie, supra,
473 F.3d 421 n.8 (‘‘redaction is available for documents
which contain legal advice that is incidental to the non-
legal advice that is the predominant purpose of the
communication’’); Hercules, Inc. v. Exxon Corp., supra,
434 F. Supp. 147 (‘‘The problem remains . . . of sepa-
rating out business from legal advice. . . . The [c]ourt
recognizes that business and legal advice may often be
inextricably interwoven. A single proposed course of
conduct . . . will have both legal and business ramifi-
cations, and the lawyer may advise as to both in a single
communication. . . . [Nonetheless], it is necessary to
separate out the two, in the interest of preserving the
integrity of the privilege itself . . . .’’ [Citation omit-
ted.]); G. Sisk & P. Abbate, The Dynamic Attorney-Client
Privilege, 23 Geo. J. Legal Ethics 201, 223 n.121 (2010)
(‘‘[t]he exacting and detailed segregation of privileged
from unprivileged portions of an otherwise integrated
communication and the redaction of the privileged sec-
tions while disclosing the remainder is a process that
generally should be reserved to the situation in which
the overwhelming purpose of the communication was
non-legal and thus the legal advice is an incidental ele-
ment of the communication’’). When such separation
is not possible, both may be protected, as long as the
primary purpose is legal advice. See In re Vioxx Product
Liability Litigation, 501 F. Supp. 2d 789, 798 (E.D. La.
2007) (‘‘When these non-legal services are mixed with
legal services it does not render the legal services any
less protected by the privilege. In fact, they both are
protected when they are inextricably intertwined.’’);
Kent Literary Club v. Wesleyan University, Superior
Court, judicial district of Middlesex, Docket No. CV-15-
6013185-S (April 12, 2016) (‘‘[w]ith regard to whether
the communications at issue were ‘inextricably linked
to the giving of legal advice,’ a determination must be
made that the claimed privileged matter is so inter-
twined with [a] non-privileged matter that it cannot
be redacted or otherwise separated’’); Marsh v. Safir,
Docket No. 99CIV.8605JGKMHD, 2000 WL 460580, *8
(S.D.N.Y. April 20, 2000) (‘‘if the protected and non-
protected purposes of the communications are inextri-
cably linked, thus precluding any separation of the com-
munications into the privileged and non-privileged
categories, the communications will be protected’’).
‘‘Lest a non-legal element become the tail that wags
the dog, a clear and significant nexus between attorney-
client communications and legal advice or assistance
is rightly expected. In classifying the character of the
communication, the crucial inquiry is whether the intent
of the client, in deciding to approach the lawyer, is to
obtain legal counsel, even if other dimensions of a mat-
ter are addressed as well.’’ G. Sisk & P. Abbate, supra,
23 Geo. J. Legal Ethics 219–20.
This court has signaled our approval of the primary
purpose standard applied by other courts. See Olson
v. Accessory Controls & Equipment Corp., supra, 254
Conn. 163–64; see also Kent Literary Club v. Wesleyan
University, supra, Superior Court, Docket No. CV-15-
6013185-S (‘‘[t]he Connecticut [Supreme Court] cited
with approval in Olson the conclusion in Cuno, Inc. v.
Pall Corp., 121 F.R.D. 198, 204 [E.D.N.Y. 1988], that
where a lawyer mixes legal and business advice the
communication is not privileged unless the communica-
tion is designed to meet problems which can fairly be
characterized as predominantly legal’’ [internal quota-
tion marks omitted]); West Hartford v. Taubman Cen-
ters, Inc., Superior Court, judicial district of Waterbury,
Docket No. CV-075007876-S, 2009 WL 1578485, *2 (May
21, 2009) (‘‘The Connecticut Supreme Court has stated
that the proper approach in a situation such as the
[present] case is to apply the privilege where the com-
munications at issue are inextricably linked to the giving
of legal advice. . . . With regard to documents, the
Supreme Court has similarly approved a case-by-case
inquiry into the primary purpose of the document.’’
[Citation omitted; internal quotation marks omitted.]).
We now expressly hold that the primary purpose stan-
dard governs such inquiries.
In the present case, the commission’s decision cited
to cases from other jurisdictions that apply this stan-
dard, but it did not determine whether the primary
purpose of the communications was seeking or provid-
ing legal advice. Nor did it consider whether incidentally
privileged matters could be redacted to allow disclosure
of nonprivileged matters. Indeed, Hunt stated that
redaction would have been possible as to some docu-
ments, but she lacked sufficient time to do so. Our
review of a sample of the communications reveals that
proper application of these considerations undoubtedly
would yield a different result as to a substantial number
of the communications examined.8 Indeed, some of the
e-mails exclusively addressed nonlegal matters, such
as eliciting employment opportunities, facilitating busi-
ness connections or opportunities, and burnishing the
defendant’s public image, that could not reasonably
be found to have been inextricably connected to legal
advice. Nor were they all inextricably connected to
certain legal controversies or proposed legislation, as
the commission’s decision suggested.
Therefore, the case must be remanded to the commis-
sion for further proceedings. See Lash v. Freedom of
Information Commission, supra, 300 Conn. 516 (‘‘any
remand for further factual findings properly would be
to the commission, not to the trial court’’). The commis-
sion may allow the parties to present further evidence
or argument to aid it in its application of the primary
purpose test and to allow the parties to create an ade-
quate record as to the commission’s application of that
test to particular communications that would permit
appropriate appellate review should that become neces-
sary. See footnote 8 of this opinion.
In reconsidering this matter, we draw the commis-
sion’s attention to other concerns about certain aspects
of its decision. The commission concluded that the priv-
ilege would attach to communications spanning more
than a four year period that were made to keep ‘‘counsel
apprised of ongoing business developments, with the
expectation that the attorney would respond in the
event the matter raised a legal issue.’’ As we previously
indicated, it is not enough for the party invoking the
privilege to show that factual information ‘‘might
become relevant to the future rendering of legal advice.
Instead, the communication must also either explicitly
or implicitly seek specific legal advice about that factual
information.’’ Valente v. Lincoln National Corp., supra,
2010 WL 3522495, *3. The commission’s decision does
not distinguish communications that expressly sought
legal advice from those that did not. Moreover, nothing
in its decision indicated that it had given any weight
to certain facts that would be relevant in ascertaining
whether there was an implied request for legal advice.
Specifically, the commission drew no distinction
between communications on which Ritter and/or Bou-
cher were primary recipients (addressees) and those on
which they were merely copied. 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. 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. Extrinsic evidence may
undoubtedly provide context for making such an
assessment.
In addition, the commission appears to have assumed
that communications relating to ‘‘proposed legislation
that potentially would have affected [the defendant’s]
business’’ related to legal advice. An authoritative trea-
tise has noted that ‘‘[i]t is unresolved whether legal
advice should be interpreted differently when it is given
in the context of the creation of laws (or regulations
in the context of government agencies), as opposed to
when it is given [in] the context of existing law. It is
not apparent how the attorney-client privilege’s policy
of effectuating greater compliance with the law through
the encouragement of more open communications to
the attorney is furthered in the legislative context.’’ 1
P. Rice, Attorney-Client Privilege in the United States
(Rev. 2015) § 7:20, pp. 1276–77. Nonetheless, without
expressing any opinion as to whether either Ritter or
Boucher had been acting as a lobbyist, or merely aiding
someone else acting in that capacity, we set forth the
following principles to guide the commission on
remand. ‘‘[I]f a lawyer happens to act as a lobbyist,
matters conveyed to the attorney for the purpose of
having the attorney fulfill the lobbyist role do not
become privileged by virtue of the fact that the lobbyist
has a law degree or may under other circumstances
give legal advice to the client, including advice on mat-
ters that may also be the subject of the lobbying efforts.’’
(Internal quotation marks omitted.) In re Grand Jury
Subpoenas Dated March 9, 2001, 179 F. Supp. 2d 270,
285 (S.D.N.Y. 2001); see also United States Postal Ser-
vice v. Phelps Dodge Refining Corp., 852 F. Supp. 156,
164 (E.D.N.Y. 1994) (‘‘[l]obbying conducted by attor-
neys does not necessarily constitute legal services for
purposes of the attorney-client privilege’’). ‘‘Summaries
of legislative meetings, progress reports, and general
updates on lobbying activities do not constitute legal
advice and, therefore, are not protected by the work-
product immunity.’’ P. & B. Marina, Ltd. Partnership
v. Logrande, 136 F.R.D. 50, 59 (E.D.N.Y. 1991). ‘‘If a
lawyer who is also a lobbyist gives advice that requires
legal analysis of legislation, such as interpretation or
application of the legislation to fact scenarios, that is
certainly the type of communication that the privilege
is meant to protect.’’ (Internal quotation marks omit-
ted.) A & R Body Specialty & Collision Works, Inc. v.
Progressive Casualty Ins. Co., Docket No. 3:07CV929
(WWE), 2013 WL 6044342, *3 (D. Conn. November 14,
2013); see also Robinson v. Texas Automobile Dealers
Assn., 214 F.R.D. 432, 445–46 (E.D. Tex. 2003) (‘‘If
advice is characterized as merely political, rather than
legal, it is also not protected. . . . And a communica-
tion telling a lobbyist what to disclose to a legislator
in the course of lobbying efforts has been held to be
unprotected because it contemplates disclosure to a
third party.’’ [Citation omitted.]), vacated in part on
other grounds sub nom. In re Texas Automobile Dealers
Assn., Docket No. 03-40860, 2003 WL 21911333 (5th Cir.
July 25, 2003).
Finally, we note that the commission’s decision does
not reflect any consideration of the inclusion of third
parties on the communications. ‘‘[S]tatements made in
the presence of a third party are usually not privileged
because there is then no reasonable expectation of con-
fidentiality . . . .’’ (Internal quotation marks omitted.)
Olson v. Accessory Controls & Equipment Corp., supra,
254 Conn. 157. Nonetheless, ‘‘[t]he presence of certain
third parties . . . who are agents or employees of an
attorney or client, and who are necessary to the [legal]
consultation, will not destroy the confidential nature
of the communications.’’ (Internal quotation marks
omitted.) Id.; id., 160 (‘‘the privilege must include all
the persons who act as the attorney’s agents when the
assistance of the agent is indispensable to the attorney’s
work’’ [internal quotation marks omitted]); see also
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.
1989) (attorney-client privilege may cover ‘‘communica-
tions made to certain agents of an attorney . . . hired
to assist in the rendition of legal services’’). For exam-
ple, Timothy Shea, a director in the Government Law &
Strategies practice group at Brown Rudnick, who is not
an attorney, was copied on some of the sought after
e-mails. There was no finding that Shea was acting as
Ritter’s agent in the rendition of any legal services with
respect to any particular matter at hand. Therefore, on
remand, the commission should consider this issue. See
In re County of Erie, supra, 473 F.3d 423 (‘‘[a]though
the e-mails at issue were generated for the predominant
purpose of legal advice, we remand for the district court
to determine whether the distribution of some of the
disputed e-mail communications to others within the
Erie County Sheriff’s Department constituted a waiver
of the attorney-client privilege’’).
The judgment is reversed and the case is remanded
with direction to sustain the plaintiff’s appeal and to
remand the matter to the commission for further pro-
ceedings consistent with this opinion.
In this opinion the other justices concurred.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Zarella, Eveleigh,
McDonald, Espinosa and Robinson. Although Justice Eveleigh was not pres-
ent when the case was argued before the court, he has read the briefs
and appendices, and listened to a recording of the oral argument prior to
participating in this decision.
1
Although the commission is the named defendant, for convenience, we
refer to the defendant Connecticut Resources Recovery Authority, the entity
from whom the records were sought, as the defendant, and refer to the
commission by name. The commission has not filed an appellate brief, and
has joined in the brief of the defendant.
2
In 2014, the legislature renamed the Connecticut Resources Recovery
Authority as the Materials Innovation and Recycling Authority. Public Acts
2014, No. 14-94, § 1; see General Statutes § 22a-260a.
3
Halloran & Sage was contracted to provide general counsel as its primary
legal service to the defendant. Brown Rudnick was contracted to provide
legal services in the following specific areas under its contract effective July,
2005: environmental; real estate/planning and zoning; energy/Department of
Public Utility Control; and litigation. Ritter is a partner in the Government
Law & Strategies practice group of Brown Rudnick.
4
By statute, the defendant is barred from hiring outside lobbyists but it
may lobby through its own employees. See General Statutes § 1-101bb; see
also General Statutes § 1-91 (11) (defining lobbying). We agree with the
commission’s hearing officer that, despite the plaintiff’s assertion that Ritter
and Boucher were lobbying on behalf of the defendant, such a fact, even
if true, would not necessarily be determinative of the question of privilege.
5
In an e-mail to Paul Nonnenmacher, the defendant’s director of public
affairs, Ritter similarly described his role as formulating strategy and inter-
acting with others to help advance the defendant’s business goals. Ritter
made no mention of his availability for legal advice.
6
In light of our conclusion that the case must be remanded to the commis-
sion for further proceedings due to a substantive defect in the decision
adopted by the commission, we need not address the plaintiff’s contention
that the commission failed to exercise its judgment by adopting the hearing
officer’s decision. We consider it both speculative and doubtful that the
concern raised is likely to arise on remand. Cf. MSO, LLC v. DeSimone,
313 Conn. 54, 66, 94 A.3d 1189 (2014) (clarifying standard likely to arise
on remand).
7
See 1 P. Rice, Attorney-Client Privilege in the United States (2d Ed. Rev.
2010) § 7:6, p. 7-78 (‘‘there is general agreement that the protection of the
privilege applies only if the primary or predominate purpose of the attorney-
client consultation is to seek legal advice or assistance’’ [emphasis in origi-
nal]); 24 C. Wright & K. Graham, Federal Practice and Procedure (1986)
§ 5490, p. 444 (majority rule is ‘‘ ‘dominant purpose’ doctrine’’); see, e.g.,
Alomari v. Ohio Dept. of Public Safety, 626 Fed. Appx. 558, 570 (6th Cir.
2015), cert. denied, U.S. , 136 S. Ct. 1228, 194 L. Ed. 2d 185 (2016);
Exxon Mobil Corp. v. Hill, 751 F.3d 379, 382 (5th Cir. 2014); In re Diagnostics
Systems Corp., 328 Fed. Appx. 621, 622–23 (Fed. Cir. 2008); In re County
of Erie, supra, 473 F.3d 422–23; In re Buspirone Antitrust Litigation, 211
F.R.D. 249, 252–53 (S.D.N.Y. 2002); Cuno, Inc. v. Pall Corp., 121 F.R.D. 198,
204 (E.D.N.Y. 1988); Barr Marine Products Co. v. Borg-Warner Corp., supra,
84 F.R.D. 634–35; Zenith Radio Corp. v. Radio Corp. of America, supra,
121 F. Supp. 794–95. But see In re Kellogg Brown & Root, Inc., 756 F.3d
754, 758–60 (D.C. Cir. 2014) (in context of internal investigation, declining
to apply single primary purpose and instead concluding that test is ‘‘whether
obtaining or providing legal advice was one of the significant purposes of
the attorney-client communication’’ [emphasis added]).
8
We note that the level of generality in the commission’s decision would
have failed to provide a meaningful and workable framework to evaluate
the hundreds of communications at issue, spanning a four and one-half year
period, had we needed to undertake an in camera review to decide whether
the commission’s findings and conclusions were proper. The commission’s
decision makes the conclusory assertion that each of the communications
‘‘relate[s] to legal advice sought by the [defendant]’’ and broadly character-
izes an unspecified subset of those communications as containing ‘‘a mix
of legal and business advice.’’ We contrast this approach with those applied
in other cases, such as where the fact finder has, by reference to specific
document numbers, distinguished communications that expressly seek legal
advice from those that do not, and, after scrutinizing the latter category,
distinguishing those that implicitly seek legal advice from those that do not.
See, e.g., Valente v. Lincoln National Corp., supra, 2010 WL 3522495, *3–4;
see also A & R Body Specialty & Collision Works, Inc. v. Progressive
Casualty Ins. Co., Docket No. 3:07CV929 (WWE), 2013 WL 6044342, *3–6
(D. Conn. November 14, 2013) (addressing communications by topic); Rob-
inson v. Texas Automobile Dealers Assn., 214 F.R.D. 432, 445–57 (E.D. Tex.
2003) (individually addressing communications), vacated in part on other
grounds sub nom. In re Texas Automobile Dealers Assn., Docket No. 03-
40860, 2003 WL 21911333 (5th Cir. July 25, 2003). We appreciate that the
hearing officer had an exceedingly difficult task to perform in the present
case, given the volume of the communications, the often cryptic content of
the e-mails, Hunt’s inability to provide detailed explanations of the communi-
cations without revealing the matters that the defendant claimed to be
privileged, and the difficulties inherent in distinguishing between business
advice and legal advice. Nonetheless, a decision on these matters should
establish a record that is amenable to review.