Bersani v. Bersani
565 A.2d 1368, 41 Conn. Supp. 252, 41 Conn. Super. Ct. 252 (1989)
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Rule of Law:
The attorney-client privilege does not protect a client's whereabouts from disclosure when the client is perpetrating a continuing fraud on the court by violating a custody order. In such circumstances, the privilege must yield to the court's duty to protect the best interests of the minor children.
Facts:
- Plaintiff wife and defendant husband were parties in a dissolution of marriage action.
- The court granted temporary custody of the parties' two minor children to the plaintiff wife.
- The plaintiff agreed to a court-approved order requiring her to give the defendant thirty days' written notice of any intent to leave the country.
- The court subsequently denied the plaintiff's motion for permission to return to Spain with the children.
- In early June, the plaintiff moved out of her house with the children and left the country, in violation of the court's order.
- The plaintiff's attorney acknowledged knowing the plaintiff's and children's whereabouts but declined to disclose the information, citing attorney-client privilege.
Procedural Posture:
- The plaintiff wife initiated a dissolution of marriage action against the defendant husband in a Connecticut trial court.
- The court awarded custody pendente lite (temporary custody) of the parties' two minor children to the plaintiff.
- After the plaintiff disappeared with the children in violation of a court order, the defendant husband filed a motion to compel the plaintiff's attorney to disclose their whereabouts.
- While the motion to compel was pending, the court found the plaintiff in wilful contempt, ordered her to return, and awarded temporary custody to the defendant.
- Subsequently, the court dissolved the marriage and ordered that permanent custody of the minor children be with the defendant.
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Issue:
Does the attorney-client privilege protect an attorney from being compelled to disclose a client's whereabouts when the client has absconded with her minor children in direct violation of a court order?
Opinions:
Majority - Freedman, J.
No. The attorney-client privilege does not apply to information imparted to an attorney by a client in the course of perpetrating a fraud on the court and must yield to the best interests of the children. The court reasons that the plaintiff's wilful violation of the court's order constitutes a 'fraud on the court.' While the attorney did not assist in the initial violation, her ongoing refusal to disclose her client's whereabouts serves to assist the plaintiff in her continuing contempt of the court's order. The court cites precedents from New York, New Jersey, Missouri, and Washington, which have all carved out exceptions to the privilege to prevent the obstruction of justice and, most importantly, to protect the welfare of a child. The court must weigh the benefits of the privilege against the state’s vital interest as 'parens patriae' in determining the best interests of the minor children, and here, the children's interests are paramount.
Analysis:
This decision establishes a significant 'fraud on the court' exception to the attorney-client privilege within the family law context. It broadens the definition of fraud to include a client's willful and ongoing violation of custody orders, prioritizing the court's ability to enforce its judgments and protect children's welfare over the principle of confidentiality. The ruling creates a clear, albeit difficult, ethical obligation for attorneys whose clients use their services to remain hidden while defying court orders concerning their children. It signals to lower courts that the best interests of the child can override evidentiary privileges that would otherwise be absolute.
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