Lawyers and clients often confront the question of when communications relating to both nonlegal and legal advice may be covered by the attorney-client privilege. Court decisions in this area have not always provided consistent guidance. A dispute concerning a Freedom of Information Act (FOIA) request directed to the Connecticut Resource Recovery Authority (CRRA) (now the Materials Innovation and Recycling Authority) provided the Supreme Court with the opportunity to directly address the proper standard for determining when the privilege covers mixed-purpose communications.
In Harrington v. Freedom of Information Commission, 323 Conn. 1 (officially released Sept. 6), the court held that to be fully covered by the privilege, a communication must explicitly or implicitly seek specific legal advice and the advice must be the primary purpose of the consultation. If the proponent of the privilege cannot satisfy that standard, it may still be entitled to redact incidental legal aspects of the communication. Harrington provides needed guidance on how courts and the Freedom of Information Commission should address mixed-purpose communications. Nevertheless, we can expect many disputes over the application of the governing standard to specific issues that arise with some frequency.
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