Greene v. Keating
Connecticut General Statutes §52-568 provides, "Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another 1.) without probable cause, shall pay such other person double damages." In a vexatious litigation suit, individual defendants objected to the disclosure of a file that their attorney assembled prior to litigation. The defendants argued that the advice-of-counsel waiver, which they asserted as a special defense, applied to the initial decision to sue and did not extend further. The court considered whether the advice-of-counsel exception to the attorney-client privilege is restricted to the period up to the commencement of the suit. "Whether, in order to avoid committing the tort of vexatious litigation, the element of probable cause must be present only at the time of commencement of the action or whether it must be present throughout the lawsuit," wrote the court, "seems to be an issue of first impression in this state." Practice Book §14-3 which permits dismissal for failure to "prosecute" with reasonable diligence, applies to conditions that take place after commencement of the suit. "The legislature," wrote the court, "clearly intended that the tort arise not only from the institution of the proceeding but from its maintenance until termination." The defendants' interpretation of the attorney-client privilege as restricted to the initial decision to file the suit was overly narrow. Attorney-client privilege is waived when the holder of the privilege places the privileged communications in issue. Plaintiffs in the underlying suit prosecuted it to judgment. The waiver rule places in issue the reliance on the advice of counsel to maintain the suit to conclusion. The court also found that denial of discovery of attorney-work product would essentially eliminate the tort of vexatious litigation. The plaintiff's ability to prevail depends on whether the attorney's notes and documents in the prior suit establish the elements of vexatious litigation. This information is not available from any other source. The court ordered the disclosure of documents identified in the privilege log.