Michael C. Harrington ()
Michael C. Harrington, a labor lawyer at Murtha Cullina, took on formidable adversaries when he began attempting to use the Freedom of Information Act to get email correspondence between lawyer-lobbyist Tom Ritter and his client, the Connecticut Resource Recovery Authority.
Ritter is the former speaker of the House of Representatives, and a Hartford political power player. Harrington wanted emails and other communications between the CRRA and Ritter, in his role as its community liaison, helping it dispose of trash to steam incinerator ash and deal with landfill closings.
In battling to get Ritter’s emails, Harrington challenged a widely held notion. It’s the idea that as long as a lawyer is involved in a communication, it’s undiscoverable and FOI-proof under the attorney-client privilege exemption.
Before this challenge, lawyers and clients have broadly used the privilege to make more things disappear than has David Copperfield, the famed illusionist.
But what if a lawyer is not really providing legal advice, but only business advice, or a mix of nonlegal and legal advice? Just because an advice-giver is a lawyer doesn’t make every type of advice a privileged attorney-client secret, right? Well, even the FOIC, which usually champions arguments that advance the public’s right to know, didn’t want to make fine distinctions here. The Connecticut Freedom of Information Commission upheld a hearing officer’s finding that all the contested emails were privileged, even when no legal advice was being given.
Amazingly, the Connecticut Supreme Court had never tackled this question before. The closest thing was a case rule that when a mix of nonlegal communication and legal advice are “inextricably linked,” privilege exempts the whole communication.
The legal landscape changed this month in the case of Harrington v. FOIC, issued by a unanimous state Supreme Court. Justice Andrew McDonald, writing for the court, enunciated a new standard for mixed legal and nonlegal advice. The FOIC now has to determine the primary purpose of the advice. If it is primarily legal in purpose, the exemption applies. If not, the legal advice should be redacted, and the document released.
On his way to the Supreme Court, Harrington’s efforts appeared Sisyphean, with three setbacks in a row. The FOI hearing officer, seizing only on the “inextricably linked” test, found that hundreds of pages of records were shielded by the attorney-client exemption. The commission “rubber-stamped” those findings, Harrington said.
And on appeal, New Britain Superior Court Judge Henry Cohn agreed that all the documents were properly deemed privileged, even some in which Ritter was merely cc’d. As the CRRA explained, this was “part of a design to keep the attorneys involved in the CRRA decision-making process.”
When Harrington appealed Cohn’s dismissal, it was taken up directly by the Supreme Court. There, for the first time, Harrington’s arguments began to gain traction.
The justices noted that Ritter’s community liaison contract was distinctly different from CRRA’s legal services contracts with law firms, and that Ritter never billed for legal services or legal advice.
The case had good facts for analyzing the issue of privilege, as applied to mixed legal and nonlegal advice. “[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,” McDonald wrote.
But other courts have, and the consensus is that business communications cannot be insulated from discovery—or open records laws—by simply being directed to an attorney.
The real question, the court determined, is whether the primary purpose of each individual document is to provide legal advice. “We now expressly hold that the primary purpose standard governs such inquiries,” the court concluded.
This means that the FOIC, when it gets the case back on remand, will now have to evaluate if the primary purpose of each document is to provide legal advice and, if not, whether any incidental legal advice could be redacted from the document.
Having viewed the purportedly privileged emails in question, the court concluded that many only addressed nonlegal matters such as job opportunities, burnishing the agency’s image and networking. The FOIC’s decision on remand, under new Supreme Court guidance, is likely to change dramatically.
The attorney-client privilege was developed to encourage full and frank disclosure between lawyers and clients, and it has been described as a “sacred” legal right. But it also prevents the public from seeing information that would otherwise be public. As such it is an impediment to obtaining accurate information about governmental agencies performing critical functions.
The Supreme Court’s Harrington decision may curtail the ability of attorneys and clients to claim privilege when there is no underlying legal advice to support it. This is indeed a good thing.
Among lawyers, it may not be the court’s most popular ruling, but it was analyzed with intellectual precision, and it marks an unexpected step forward for open government.