Opinion
No. CV 09 5010669
December 29, 2009
MEMORANDUM OF DECISION
Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order Preventing Depositions [101, 101.50] Supplemental Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order [104] Plaintiff's Objection to Motion to Quash Subpoenas Duces Tecum and Motion for Protective Order Preventing Depositions [102]
A young Joshua Putnam, 20 years of age, was committed to the Corrigan Correctional Institution (Corrigan) as a pretrial detainee on December 12, 2007. He remained there until his death in April 2008.
On December 17, 2007, he underwent an Intake Health Screening conducted by Corrections Department medical personnel (a nurse or nurses). One purpose of the screening was to determine whether there were mental health issues. At the December 17, 2007 intake screening, Joshua informed that he had been a patient at the Stonington Institute (a behavioral health treatment facility providing residential and outpatient services) from September 2006 to October 2007 because of his father's suicide. Despite having this information, Corrections never performed an adequate mental health screening.
As of March 15, 2008, Joshua complained he was suffering from mental illness which caused him anxiety. He also informed that he had been vomiting for a period of 10 days. He gave this information on that day to a nurse. He told the nurse he was schizophrenic. The nurse did not assess or evaluate Joshua's mental health but rather advised Joshua to write a letter to "Mental Health for follow-up."
Just three weeks later, during the evening of April 9, 2008, Joshua asphyxiated himself with a bedsheet in his cell. He was taken to a hospital where he died three days later.
Joshua's mother, Candice L. Gale, the plaintiff, has been appointed Administratrix of Joshua's estate.
This is a wrongful death action pursuant to General Statutes § 52-555 against the Department of Corrections for medical malpractice.
In connection with the criminal charges for which Joshua was being detained, Joshua was represented By the Office of the Public Defender. Attorney Ernest Green was the public defender who actually represented Joshua.
In this wrongful death action against the Department of Corrections, plaintiff scheduled and noticed depositions of Attorney Green and Dr. Philip Cardamone, a psychiatrist that Attorney Green consulted regarding Joshua. Dr. Cardamone did meet with and interview Joshua. Plaintiff subpoenaed Attorney Green and Dr. Cardamone to the depositions. The subpoenas ordered Green and Cardamone to produce records of the public defender regarding Joshua at their depositions.
Neither Attorney Green or Dr. Cardamone are parties to this wrongful death action.
Through counsel, Green and Cardamone have moved to quash the subpoenas duces tecum. They have also moved for protective orders preventing plaintiff from taking their depositions and their production of records of the public defender. [101, 101.50, 104.]
Public Defender Green and Dr. Cardamone rely on the erasure statutes and the attorney-client privilege.
The court first addresses the erasure statutes.
As a result of Joshua's untimely death, the criminal charges against him were dismissed.
The statute relied upon by Green and Cardamone, General Statutes § 54-142a, reads as follows:
(a) Whenever in any criminal case, on or after October 1, 1969, the accused, by a final judgment, is found not guilty of the charge or the charge is dismissed, all police and court records and records of any state's attorney pertaining to such charge shall be erased upon the expiration of the time to file a writ of error or take an appeal, if an appeal is not taken, or upon final determination of the appeal sustaining a finding of not guilty or a dismissal, if an appeal is taken. Nothing in this subsection shall require the erasure of any record pertaining to a charge for which the defendant was found not guilty by reason of mental disease or defect or guilty but not criminally responsible by reason of mental disease or defect."
This statute provides that upon dismissal, "all police and court records and records of any state's attorney pertaining to such charge shall be erased." Id.
To give effect to this provision, section 54-142a(e) prohibits any person charged with the retention of the erased records from disclosing any information contained in such records. Ruggiero v. Fuessenich, 237 Conn. 339, 342 (1996).
The erasure statute does not apply to the records of the office of the public defender.
The court has found no statute, nor have the attorneys for Green and Cardamone cited any statute, which requires the office of the public defender to erase any records regarding a case which has been dismissed.
The court has found no statute, nor have the attorneys for Green and Cardamone cited any statute, which charges the office of the public defender with the retention of erased records.
Section 52-142a(e) does place some restriction on "any law enforcement agency having information contained in such erased records" from the disclosure of same. To be sure, the office of the public defender would be loathe to be described as a "law enforcement agency."
The erasure statute does not apply to the records of the office of the public defender nor to information known to a public defender.
Insofar as Attorney Green's and Dr. Cardamone's positions are based on the erasure statute(s), the reliance is misplaced.
Attorney Green and Dr. Cardamone invoke the attorney-client privilege. They're doing so, at least initially, was justified. The attorney-client privilege belongs to the client, not the attorney. The attorney has no right to disclose the privileged communications of the client.
Not all communications from the client to the attorney are privileged. For example, if the client tells the attorney something which the client wants the attorney to tell someone else, that client-to-attorney communication is not privileged.
The core issue before the court is whether the plaintiff, the administratrix of Joshua's estate, can waive the attorney-client privilege.
Neither Attorney Green, Dr. Cardamone, or the plaintiff have cited any cases on this issue. The court is not aware of any Connecticut appellate authority on the issue.
There is substantial authority from other states.
New York cases hold that an estate fiduciary may waive the privilege. In Mayorga v. Tate, 302 A.D.2d 11, 752 N.Y.S.2d 353 (2002), the Appellate Division held:
We hold the fact, just as the attorney-client privilege itself survives the death of the client for whose benefit the privilege exists . . . the right to waive that privilege in the interest of the deceased client's estate also survives, and may be exercise by the decedent's personal representative. Id., 11-12.
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It is in light of this logic that the common law has always provided that an executor may, in the interest of the estate, waive the attorney-client privilege of the deceased client. This is a rule which, according to one authoritative treatise (see 8 Wigmore, Evidence § 2329, at 640 [McNaughton rev. 1961]), `is accepted with practical unanimity.' (citing Brooks v. Holden, 55 N.E.2d 802 [Mass]; see District Attorney for Norfolk District v. Magraw, 628 N.E.2d 24 [Mass]; Marker v. McCue, 297 P. 401 [Idaho]; Buuck v. Kruckeberg, 95 N.E.2d 304 [Ind.]; Eicholtz v. Grunewald, 21 N.W.2d 914 [Mich]; Canty v. Halpin, 242 S.W. 94 [Mo]; Matter of Estate of Hebbeler, 875 S.W.2d 163 [Mo]; Matter of Thomas' Estate, 4 P.2d 837 [Wash], aff'd 7 P.2d 1119; Martin v. Shaen, 156 P.2d 681 [Wash]; Matter of Curtis' Estate, 394 P.2d 59 [Kansas]; Scott v. Grinnell, 161 A.2d 179 [NH]; Taylor v. Sheldon, 173 N.E.2d 892 [Ohio]; Holyoke v. Holyoke's Estate, 87 A. 40 [Maine]; Annotation, Waiver of Attorney-Client Privilege by Personal Representative or Heir of Deceased Client or by Guardian of Incompetent, 67 ALR2d 1268). Id., 14.
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We conclude by returning to the basic thesis that it makes no sense to prohibit an executor from waiving the attorney-client privilege of his or her decedent, where such prohibition operates to the detriment of the decedent's estate, and to the benefit of an alleged tortfeasor against whom the estate possesses a cause of action (see Martin, Capra and Rossi, New York Evidence Handbook § 5.2.8, at 361-62, supra). `That an executor * * * may exercise authority over all the interests of the estate left by the [decedent], and yet may not incidentally have the right, in the interest of that estate, to waive the [attorney client] privilege * * * would seem too inconsistent to be maintained under any system of law.' (8 Wigmore, Evidence § 2329, at 639 [McNaughton rev. 1961], supra). New York should not, in our view, adhere to the proposition condemned by Wigmore as `too inconsistent to be maintained.' We therefore conclude that, under the terms of CPLR 4503, just as under the common law, an executor may waive the attorney-client privilege of his or her decedent (see Spectrum Sys. Intl. Corp. v. Chemical Bank, supra at 377; Matter of Fishmans Estate, supra; Matter of Colby, supra; see also Martin v. John Hancock Mut. Life Ins. Co., 120 Misc.2d 776). 320 A.D.2d @ 18-19." Id., 18-19.
Four years later, the New York Appellate Division followed Mayorga v. Tate in Estate of Bassin, 28 A.D.3d 549, 813 N.Y.S.2d 200 (2006)
Annette Bassin died intestate survived by her son Joseph and her daughter Madeline. Shortly before her death, Annette conveyed certain real estate to her son Joseph. Joseph had lived with Annette and had been her primary caretaker for some 14 years. The deed of conveyance to Joseph was executed at the offices of Attorney Alan Silver. Joseph was appointed administrator of Annette's estate by the Surrogate's Court. Madeline brought this discovery proceeding for a determination of the validity of the inter vivos gift of the real estate to Joseph. The Appellate Court wrote:
"The Surrogate's Court correctly allowed Joseph, as administrator of the decedent's estate, to waive the attorney-client privilege and properly admitted the testimony of Silver, the attorney who advised the decedent with respect to the deed transferring ownership of the subject real property to Joseph. Silver's testimony provided the best evidence of the decedent's intent in executing the deed (see Mayorga v. Tate, 302 AD2d 11, 14-15 [2002]). Moreover, the decedent would likely have waived the privilege herself because the dispute here involved her only heirs (see Mayorga v. Tate, supra at 18-19)." Id., 550.
Massachusetts law is clear and longstanding on the issue. See District Attorney of Norfolk District v. Magraw, 417 Mass. 169, 628 N.E.2d 24 (1994).
"It has been long recognized that the privilege of non-disclosure of confidential communications between a client and his or her attorney survives the client's death. See Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 483 (1990); Brooks v. Holden, 175 Mass. 137, 141 (1900). Further, we have acknowledged that "an executor or administrator of a deceased client may exercise in favor of the client's estate the right to waive the privilege, and may call upon the attorney to disclose as a witness communications made to him by the client." Brooks, supra at 141-42. See Matter of a John Doe Grand Jury Investigation, supra; Sullivan v. Brabason, 264 Mass. 276, 286 (1928)." Id., 172-3.
Rhode Island also follows the overwhelming majority rule that an executor or administrator of a decedent's estate can waive the attorney-client privilege. Lapan v. Lapan, 100 R.I. 498, 217 A.2d 242 (1966). The rule was recognized in an unusual context.
This case was brought by Jane R. Lapan against the executor of the estate of Lena Lucy Lapan. Richard L. Lapan was the executor, he was also a residuary legatee. Richard was a respondent both in his individual capacity and as the executor of his mother's estate. In 1956, several members of the Lapan family settled several inter-family claims. As part of the settlement, the decedent, Lena, executed a will in which the plaintiff would share in her residuary estate. Lena agreed not to change the 1956 will. Lena's husband predeceased her. When Lena died in 1962, her will dated December 12, 1958, was filed for probate. The 1958 will revoked the 1956 will and the residuary bequest to the plaintiff. The court held the 1956 agreement was ambiguous as to whether Lena had bound yourself not to change the will at least as far as the bequest to the plaintiff. The trial court looked beyond the agreement itself and employed extrinsic evidence to determine Lena's objective. The trial court found that Lena had intended to make the provisions of the 1956 will in favor of the plaintiff irrevocable. Richard, the executor, challenged the propriety of the evidence relied upon by the trial court because such evidence came principally from the attorney who had represented Lena and her husband in the settlement negotiations and had prepared the letter agreement and the wills of January 1956. Richard contended that the attorney-client privilege barred the attorney's testimony. During the trial, Richard did not object to the attorney's testimony; Richard extensively cross-examined the attorney in an attempt to elicit testimony favorable to his cause. The Supreme Court of Rhode Island stated:
The respondent makes no argument that the finding in this respect was clearly wrong, but instead contends that it should be disregarded first because premised upon parol evidence, a contention already decided adversely to him, and alternatively for the reason that such evidence came principally from the attorney who had represented Lena and Arthur in the settlement negotiations and had prepared the letter and the wills of January 19, 1956. Notwithstanding the failure of the respondents below to interpose objections to that testimony when given, and even though they cross-examined the witness extensively in an attempt to elicit something of value, the respondent here now calls upon the rule forbidding disclosure of confidential communications between client and lawyer and contends that its application barred the use of that testimony in the fact-finding process. The privilege he now invokes is a personal one. It belonged to Lena during her lifetime and upon her death passed to her successors in interest. Richard as her executor could have claimed it. Holyoke v. Estate of Holyoke, 110 Me. 469; 8 Wigmore, Evidence (McNaughton rev. 1961), § 2329, p. 639. Not having been claimed when the attorney testified, respondent is precluded from invoking it for the first time on appeal. Balazinski v. Lebid, 65 N.J. Super. 483. Id., 504.
Rhode Island is among the vast majority of states which recognize that the fiduciary of a decedent's estate can waive the attorney-client privilege.
All of Connecticut's immediate neighbors, New York, and Massachusetts, and Rhode Island, follow the rule.
The most recognized commentator on the Law of Evidence through the years, Professor John Henry Wigmore, is adamant that the fiduciary of a decedent's estate can waive the decedent's attorney-client privilege.
That an executor or administrator may exercise authority over all the interests of the estate left by the client, and yet may not incidentally have the right, in the interest of that estate, to waive the privilege of concealing confidential communications affecting it, would seem too inconsistent to be maintained under any system of law. It has, indeed, seldom been maintained for the present privilege; but the denial of the waiver for another privilege by some courts (§ 2391 infra), and commands here the more emphatic repudiation of such a fallacy.
`Barker, J., in Brooks v. Holden, 175 Mass. 137, 55 N.E. 802 (1900) To allow the executor or administrator of the deceased client to waive the privilege, and to call the attorney to testify as to a privileged communication, in a suit involving the client's estate, no more militates against the principle of public policy involved, than to allow the client himself to waive the privilege. Nor does it tend to weaken the protection which the rule gives for the benefit of the client as an individual. The executor or administrator acts with reference to the question of waiver as the personal representative of the deceased client, and solely in the interest of his estate.'
This view is accepted with practical unanimity.
8 Wigmore, Evidence (McNaughton rev. 1961), § 2329, p. 639-40.
Neither Attorney Green or Dr. Cardamone have presented any persuasive rationale for denying the plaintiff the ability to waive the attorney-client privilege. Nor have they presented any authority on the issue.
The court holds, in line with the vast majority of the authority on the question, that the plaintiff, the administratrix of the estate of a Joshua Putnam can waive Joshua's attorney client privilege.
The motions of Attorney Green and Dr. Cardamone to quash the subpoenas duces tecum are denied. Likewise, their motions for protective orders are denied.