QUINN, JUDGE.
On April 29, 2003, the plaintiff renewed its motion for a protective order, seeking to prohibit the disclosure of certain documents and deposition of its present pension attorneys and actuaries under a claim of the application of the attorney-client privilege. The underlying action is a claim of malpractice against the plaintiff's previous pension attorneys and actuaries, who were replaced by the present firm in August 1998. The claimed malpractice is defendants' advice and amendment of a pension plan for one of the unions comprising the plaintiff. The advice concerned the removal of a cost of living adjustment (COLA) from a lump sum benefit in the plan, which adjustment had previously been a part of both an annuity and a lump sum payment benefit. The COLA, which remained for the annuity payment was increased as a result of negotiations by .05%. Subsequently, the IRS held such amendment invalidated the tax treatment of the plan.
Some months later, under the direction of the successor firm, these same plan amendments were made to another pension plan for the benefit of another union of the plaintiff association. No legal action has been taken against the successor firm, although there is testimony that services in certain areas of the work are being provided without charge.
The defendants opposed the motion for protective order and in their most recent submission of May 27, 2003, appended the depositions of two employees of the plaintiff. Having reviewed those depositions and the uncontradicted facts set forth in them, the court finds that the plaintiff continued to share information between its past and present legal advisors and actuaries from August 1998 right up and through the time this action for professional malpractice was commenced. The court concludes from the sworn testimony of plaintiff's employees that there was no intention, as between the two firms, to keep this information confidential. CT Page 8698
While the plaintiff has argued a number of legal reasons why the attorney-client privilege applies to prohibit the disclosure of this information, the court finds none persuasive. As noted in Pagano v. Ippoliti, 245 Conn. 640, 649-50, 716 A.2d 848 (1998):
The court has reviewed the cases cited as well as the arguments of both sides as to all the legal claims raised. Because of its conclusion that the information sought was never intended to be kept confidential as to these two parties, these issues are not reached in this opinion.
The attorney-client privilege applies to communications: (1) made by a client; (2) to his or her attorney; (3) for the purpose of obtaining legal advice; (4) with the intent that the communication be kept confidential . . . When two or more people consult an attorney together on a matter of joint interest . . . their communications [are] privileged as to the outside world, though not as to each other in a later controversy between themselves. Similarly, if a client calls into [a] conference with [an] attorney one of the client's agents, and matters are discussed which bear on the agent's rights against the client, those communications would not be privileged. The rationale in both instances is that the individuals involved, did not intend to keep their communications secret from one another.
(Emphasis added, internal quotation marks and citations omitted.)
The Pagano court concluded that the challenged documents were not privileged because there was no intent to keep them confidential as between the parties to the lawsuit. While in Pagano, the court held that the documents were inadmissible hearsay, in the case at bar the court is concerned with discovery, not the introduction of the documents at trial. The court finds, therefore, that the documents are to be fully disclosed to the defendants. The court finds the same analysis applies to the depositions of individuals in the firm of Bredhoff Kaiser, P.L.L.C.
In addition, the court finds from the deposition testimony that because employees of the plaintiff cannot recall the details of the fee arrangement nor why it was entered into between the plaintiff and Bredhoff Kaiser, inquiry may properly be made of Bredhoff Kaiser concerning the details of the fee arrangement. Such details, in the context of this case, are not protected from disclosure by the attorney-client privilege.
The noticed deposition is to proceed at a time and place convenient to the involved parties. The previous order, (McLachlan, J.), granting the application of October 2, 2002 for a commission to take the out-of-state deposition shall remain in effect.
IT IS SO ORDERED, CT Page 8699
BY THE COURT
BARBARA M. QUINN, Judge