Cornerstone Christian Center, Inc. v. LLC (2011)

MEMORANDUM OF DECISION IN RE MOTION TO QUASH (# 102)

Before the court is the plaintiff's motion for order to quash in this legal malpractice action.   The plaintiff, Cornerstone Christian Center, Inc. (Cornerstone) filed a motion on March 14, 2011 seeking a protective order and the quashing of a subpoena duces tecum served by the defendants, Timothy Yolen and the firm of Yolen and Perzin, LLC. The motion for order to quash seeks to forestall the deposition of Cornerstone's former attorney, Karen E. Haley, Esq. (Attorney Haley), and preclude the production of any privileged documents.   On March 22, 2011, the defendants filed an opposition to the motion to quash on the basis that the attorney-client privilege has been implicitly waived.   The plaintiff thereafter on March 25, 2011 filed a reply to the defendants' memorandum in opposition.   The court heard oral argument from the parties at short calendar on April 25, 2011.   Upon consideration of the memoranda and oral argument, the motion for an order to quash is denied.

The Supreme Court has recognized that “the attorney-client privilege implicitly is waived when the holder of the privilege has placed the privileged communications in issue ․ [B]ecause of the important public policy considerations that necessitated the creation of the attorney-client privilege [however], the ‘at issue,’ or implied waiver, exception is invoked only when the contents of the legal advice is integral to the outcome of the legal claims of the action ․ Such is the case when a party specifically pleads reliance on an attorney's advice as an element of a claim or defense, voluntarily testifies regarding portions of the attorney-client communication, or specifically places at issue, in some other manner, the attorney-client relationship.   In those instances the party has waived the right to confidentiality by placing the content of the attorney's advice directly at issue because the issue cannot be determined without an examination of that advice.”  (Citation omitted;  internal quotation marks omitted.)  Hutchinson v. Farm Family Casualty Ins. Co., 273 Conn. 33, 39, 876 A.2d 1 (2005).

The plaintiff in this case has placed in issue legal advice which is integral to the outcome of the claims of the action.   Specifically, the plaintiff alleges that the defendants, “in conducting the search of the title ․ discovered, or in the exercise of reasonable care should have discovered that the property was zoned residential which prohibited the plaintiff from building ․” Further, it is alleged that the defendants “failed to review the results of the title search conducted to discover the nature and extent of the zoning restriction,” and “failed to halt the purchase agreement based upon the results of the title search” and that “these failures constituted a deviation from the standard of care practiced by real estate attorneys in the State of Connecticut ․”

The filings accompanying the instant motion and its opposition include various letters between the defendants and Attorney Haley in specific regard to the procurement and review of the title search put at issue by the plaintiffs in this case.   Specifically, Attorney Haley wrote to Attorney Yolen that she represented Cornerstone in the closing of the property, and that she “had received a copy of the title search from my client and that I will be ordering a title bringdown on the same and will be issuing the title policy.”   Further, a bill was submitted as a “statement for closing services rendered” by a paralegal service which included “review of title search” and “review of multiple correspondence from zoning attorney ․” The plaintiff at oral argument conceded that the work of the paralegal hired to render those “closing services” was directed by Attorney Haley.   Accordingly, the issue as to whether the defendants' failure to conduct an appropriate title search review resulted in the plaintiff's alleged damages cannot be fully determined without some examination of the advice and scope of Attorney Haley's role.

Thus, in the present case, the court finds that the attorney-client privilege has been waived in specific regard to those privileged communications and documents related to the scope of Attorney Haley's involvement in obtaining the title search and any subsequent title review.   The plaintiff has put at issue the legal advice it received in connection with that title search and review, and it is integral to the outcome of the legal claims of this action.   Accordingly, the motion for order to quash the subpoena duces tecum is denied.

Woods, J.

Woods, Glenn A., J.