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In a case of first impression, the Connecticut Supreme Court ruled Aug. 2 that communications otherwise covered by attorney-client privilege lose their protected status if they are procured with the intent of carrying out a civil fraud. Previously, Connecticut courts were vague on the issue. Discussions between lawyers and their clients usually were subject to compelled disclosure only in cases when communications were entered into for the purpose of attaining legal advice to aid criminal activity. But while the high court recognized a new exception to the state’s evidentiary rule regarding attorney-client privilege, it did not find that such an exception occurred in the matter directly before it in Olson v. Accessory Controls and Equipment Corp. “This case didn’t measure up to the test of what civil fraud ought to be,” proclaimed attorney Richard D. O’Connor of Hartford’s Siegel, O’Connor, Schiff & Zangari, who successfully defended the manufacturer in the dispute. SECRET REPORT The issue before the state Supreme Court stemmed from a wrongful-termination suit brought by William A. Olson after his plant manager’s job at Accessory Controls’ Windsor, Conn., facility was eliminated in 1993. Olson claimed his dismissal came in retaliation for his disclosing information about the improper storage and disposal of hazardous waste at the plant to its new parent company. In 1990, the state Department of Environmental Protection, after inspecting the site and identifying two trouble areas, ordered the corporation to develop a remedial plan for the storing and disposing of hazardous waste. In responding to the order, the company retained Glastonbury, Conn., attorney Carole W. Briggs. Briggs, in turn, hired a consultant to do an independent inspection. In reporting its findings, the consultant, however, listed information about areas at the plant other than just the contaminated spots discovered by the DEP, and was fired by Briggs after refusing to issue two separate reports, according to factual findings relied on by the high court. The consultant’s report was never submitted to the state. A year and a half later, representatives from Accessory Control’s French parent corporation visited the plant. After promising Olson that he would not be subject to reprisal, Olson told them of the existence of the shelved report. His bosses, however, learned of the admission, and, after trying to get Olson to resign, they did away with his job, he alleged. NO EXTRA DUTY In attempting to prove his claims against his former employer, Olson suffered a severe setback when the judge hearing the case adopted an earlier-issued protective order and found the consultant’s report — as well as a letter by Briggs instructing the consultant to stop working — to be privileged. The judge then granted the defendant’s motion to dismiss the case due to lack of evidence. On appeal, Olson’s lawyer, Alan I. Scheer of Pullman & Comley’s Bridgeport, Conn., office urged the high court to adopt the same civil-fraud exception to attorney-client privilege that is recognized in federal court. Under such an exception, the documents, Scheer argued, would not be protected by attorney-client privilege because they were part of an effort to mislead the DEP. In upholding a state appellate court decision that had backed the trial judge, the high court, in its unanimous Aug. 2 ruling penned by Justice Joette Katz, granted Scheer his first request. But it found that the company and Briggs’ actions — though hardly forthcoming — did not amount to fraud or misrepresentation. “Based on the trial court’s findings, there was no evidence that the defendant sought legal advice with the intent to perpetrate a fraud on the department by withholding information,” Katz concluded. Scheer called the decision a “sad” one for his client. “Here’s a guy who was basically run out of his job because he reported what he believed was wrongdoing,” he said. The new exception, according to ethics expert Ralph G. Elliot, only applies to matters in litigation and does not implicate the attorney ethics rules which already allow lawyers to disclose client communications when they believe that doing so will prevent their client from using their advice to commit criminal or fraudulent acts. “It doesn’t impose any new duty on lawyers,” Elliot stressed.

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