State Court Decision Highlights the Fragility of the Attorney-Client Privilege

April 27, 2005

Because the attorney-client privilege is extremely fragile, the presence of anyone outside the intimate attorney-client relationship can destroy the privilege.

In Grenier v. City of Norwalk, No. X06CV0001694835, 2004 Conn. Super. LEXIS 3719 (Conn. Super. Ct. Dec. 16, 2004), a dying plaintiff videotaped a statement before her death. The defendant sought to depose the videographer, who was present during otherwise privileged conversations between the plaintiff and her lawyer. The court held that the videographer’s presence “was necessary for the videotaping of Johnson’s statement” but “was not necessary for Johnson to consult with her attorney.” Id. at *2. Because “the attorney could have easily and effectively communicated with his client outside of [the videographer’s] presence,” his presence destroyed the privilege. Id.

Lawyers should keep this rule in mind when they continue privileged discussions with their clients in the presence of third parties such as delivery folks, cleaning staff, etc.