August 9, 2012
On January 11, 2012, Harold B. Finn III (assisted on the brief by former partner and now Superior Court Judge Donna Nelson Heller and associate Tony Miodonka) argued before the Connecticut Supreme Court on behalf of Finn Dixon & Herling LLP (“FDH”) with respect to a writ of error captioned Woodbury Knoll, LLC, et al. v. Shipman & Goodwin, LLP, et al. The Connecticut Supreme Court has recently issued its opinion in the case, sustaining the arguments of FDH in all important respects. The Court’s opinion provides important guidance and protections for both Connecticut lawyers and their clients.
FDH, which had represented Woodbury Knoll, LLC (among others) in prior related litigation but was not a party to the underlying legal malpractice case, filed a writ of error challenging the trial court’s orders with respect to a subpoena duces tecum served upon FDH by defendants Shipman & Goodwin, LLP, et al. (“Shipman”). At the trial court, FDH asserted that the subpoena was objectionable on numerous grounds, including that, by its terms, it sought the indiscriminate production of materials protected by the attorney-client privilege and the attorney work product doctrine in violation of the Connecticut Practice Book, General Statutes and Rules of Professional Conduct, as well as the common law. Shipman responded by asserting, among other things, that plaintiffs Woodbury Knoll, LLC, et al. (“Woodbury Knoll”) had waived the protections of the attorney-client privilege and the work product doctrine under the “at issue” or implied waiver exception merely by bringing the lawsuit and claiming attorney’s fees and amounts paid in settlement as damages, and that FDH had no standing to assert either the attorney-client privilege or the work product doctrine on its own behalf.
Justice Zarella, writing for a 4-3 majority, held that (a) the trial court’s order compelling FDH to comply with the subpoena was an appealable final judgment under State v. Curcio and Abreu v. Leone, (b) that FDH had standing to assert the attorney-client privilege in the trial court, and (c) that the trial court had improperly denied FDH’s motion to quash the subpoena which, on its face, required the production of privileged materials. In that connection, the Court rejected Shipman’s argument that Woodbury Knoll had implicitly waived the attorney-client privilege by claiming as damages FDH’s attorney’s fees and the amounts paid in settlement of claims asserted in the prior litigation.
The dissent disagreed with the first part of the Court’s opinion, and would have dismissed the case for lack of a final judgment. Specifically, the dissent would have required FDH to subject itself to a judgment of contempt before seeking appellate relief.
The case was remanded to the trial court with direction to vacate the order compelling production of the files related to FDH’s representation of Woodbury Knoll.
The Court’s majority opinion can be found here: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR305/305CR78.pdf, and the dissent can be found here: http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR305/305CR78E.pdf. A more detailed summary of the case and the significance of the Court’s opinion can be found here: http://www.bna.com/malpractice-action-doesnt-n12884910957/.