## Facts

- Amparo Bersani (wife) filed an action for dissolution of marriage against Michael G. Bersani (husband) in Connecticut Superior Court.
- Before trial, the court awarded the wife temporary custody (custody *pendente lite*) of the parties’ two minor children and granted the husband specified visitation rights.
- The parties executed a written agreement, approved by the court, requiring the wife to give the husband 30 days’ written notice before leaving the country with the children.
- The wife later moved for an order permitting her to return to Spain with the children while the dissolution action was pending; after a hearing, the court denied that request.
- In early June 1989, the husband learned the wife had moved out of her residence with the children without telling him where she and the children were going.
- The husband asked the wife’s attorney for the wife’s and children’s location; the attorney acknowledged having the information but refused to disclose it, citing attorney-client privilege and duties of confidentiality.
- The husband filed a motion to compel the wife’s attorney to reveal the whereabouts of the wife and the children.
- While the motion was pending, the court found the wife in willful contempt, ordered her to return to Connecticut, and awarded the husband temporary custody of the children.
- About a week later, the court dissolved the marriage (the wife did not appear, though she was represented by counsel) and awarded custody of the children to the husband.
- After the custody judgment, the husband pursued the motion to compel disclosure so the court’s custody and contempt orders could be enforced.

## Issues

1. Does the attorney-client privilege allow the wife’s attorney to refuse to disclose the whereabouts of the wife and minor children when the wife has absconded in violation of custody-related orders and continues in contempt?
2. Where a client’s nondisclosed location information is tied to continuing contempt and an alleged fraud on the court, may the court compel counsel to reveal that information notwithstanding privilege and confidentiality principles?

## Decision

- The court granted the husband’s motion to compel.
- The court ordered the wife’s attorney to disclose the whereabouts of the wife and the minor children.
- The court concluded that privilege and confidentiality could not be used to keep secret information that would sustain an ongoing evasion of the court’s custody and contempt orders.

## Legal Principles

- Attorney-client privilege exists to protect confidential communications made for the purpose of obtaining legal advice, but it is not absolute.
- Privilege does not protect communications (or information supplied through communications) when the client uses the attorney relationship to carry out or continue a fraud on the court or other ongoing wrongdoing, including continued disobedience of court orders.
- The privilege generally protects communications rather than underlying facts; a party cannot convert a fact into a protected matter merely by telling it to counsel, particularly where concealment of the fact is integral to ongoing contempt.
- In custody and visitation matters, the court has authority and responsibility to ensure orders affecting minor children are effective; secrecy that prevents enforcement of custody determinations and contempt remedies may be pierced.
- An attorney’s duty of confidentiality does not bar compliance with a valid court order compelling disclosure in circumstances where the privilege does not apply.

## Conclusion

Bersani v. Bersani held that a mother could not keep her and her children’s whereabouts hidden through her attorney after violating custody-related orders and remaining in contempt; because the nondisclosure would perpetuate ongoing disobedience and frustrate enforcement of custody determinations affecting the children, the court compelled the wife’s attorney to disclose the location information.


Bersani v. Bersani, 565 A.2d 1368 (1989)