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Ohio Legal Ethics Narrative
I. Client-lawyer relationship
- Primary Ohio References: Ohio Rule 1.6; ORC 2317.02(A), 2317.021; OH R Evid 501
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Giannelli & Snyder, Baldwin's Ohio Practice, Evidence §§ 501.8, 501.10; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio §§ 4.2, 9.1-9.5
- Commentary: ABA/BNA § 55:301; ALI-LGL §§ 68-85; Wolfram §§ 6.3-6.5
Introduction - Relationship between ethics obligation of confidentiality and attorney-client privilege: As is stated in Ohio Rule 1.6 cmt. :
The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work-product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.
While there can be considerable overlap between the concepts of confidentiality under Rule 1.6(a) and the testimonial attorney-client privilege (in Ohio, both statutorily and common law based, see discussion below), there are important differences. See, e.g., ABA, Annotated Model Rules of Professional Conduct 94 (6th ed. 2007) (commentary):
[T]he two are entirely separate concepts, applicable under different sets of circumstances. The ethical duty, on the one hand, is extremely broad: it protects from disclosure all “information relating to the representation of a client,” and applies at all times. The attorney-client privilege, on the other hand, is more limited: it protects from disclosure the substance of a lawyer-client communication made for the purpose of obtaining or imparting legal advice or assistance, and applies only in the context of a legal proceeding.
[d]espite its near-absolute character when applicable and properly invoked, the attorney-client privilege actually has a narrow scope. . . . The privilege is applicable only in formal legal proceedings, only in response to an attempt to compel testimony, and only where what is being compelled is testimony about information passing between lawyer and client. By contrast, the confidentiality rule directs lawyers not to disclose – voluntarily or otherwise, unless an exception applies – information that the lawyer has learned about a client, no matter where or how the information was learned.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.7, at 9-28 (3d ed. Supp. 2004-2) (emphasis in original). Accord 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Federal Rules of Evidence § 5472 (1986):
The privilege is concerned with the question of when courts can compel the disclosure of confidential communications between an attorney and client; the duty of confidentiality imposes an obligation on the attorney to keep his client's confidences, whether in or out of court.
Id. at 89-90. Wright and Graham make the further point that it is the communication between lawyer and client that is protected by the privilege, not the information or facts contained therein. Id. § 5484, at 320. Those facts, however, may be protected against disclosure under ethics confidentiality principles, if they constitute "information relating to the representation." See Rule 1.6(a).
Other statements of the privilege limit its application to compelled testimony by the attorney. At a different point in their treatise, Hazard and Hodes, after noting the comprehensiveness of the professional duty of confidentiality, contrasted the evidentiary attorney-client privilege, which
only applies when the question is whether a lawyer can be compelled to testify about her professional communications with a client.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.7, at 9-25 (3d ed. Supp. 2004-2) (emphasis in original).
This narrower view is consistent with the statutory attorney-client privilege in Ohio, as set forth in ORC 2317.02(A) (as to which see below), although the Ohio common-law privilege (also see below) protects against compelled testimony of attorney-client confidential communications by others, such as the client. In re Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943) (syllabus six).
In sum, confidential communications between attorney and client are protected by ethics confidentiality principles (Rule 1.6(a)), subject to any applicable exceptions in 1.6(b) or (c); such communications are also protected by the attorney-client privilege when the issue of their disclosure comes up in the context of compelled testimony. If the issue involves compelled testimony by a lawyer about privileged communications with his client or waiver of the statutory privilege, Ohio law holds that the provisions of ORC 2317.02(A) are controlling. See Smith v. Smith, 2006 Ohio 6975, 2006 Ohio App. LEXIS 6935 (Hamilton) (reversing denial of plaintiff-executrix’s motion in limine to preclude attorney, who drafted trust for her deceased husband, from testifying on grounds of statutory privilege, where executrix refused to waive privilege).
These generally accepted norms would appear to have been skewed to some extent, at least on implied waiver issues, by the Supreme Court's opinion in Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 847. See discussion in section 1.6:530 at "Implied waiver of privilege by client."
In general: A fundamental principle underlying the attorney-client relationship is that the attorney "shall not reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law." Ohio Rule 1.6(a). The purpose of any privileged communication, whether between doctor and patient or attorney and client, is to ensure that patient or client may reveal necessary information relating to the professional service being sought without fear that such information will reach the wrong people. Hobbs v. Lopez, 96 Ohio App.3d 670, 645 N.E.2d 1261 (Scioto 1994).
The first step in considering the attorney-client privilege in Ohio is to determine the nature of the privilege being asserted. If the privilege is asserted to preclude an attorney's testimony regarding a confidential communication between attorney and client, the privilege is governed by the statutory testimonial privilege and the express exceptions thereto set forth in ORC 2317.02(A). In all other matters, including testimony by the client or by the agent of an attorney, the common-law rules concerning attorney-client privilege will control. See In re Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943) (syllabus six) (client testimony). As the Supreme Court stated in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824 N.E.2d 990, at ¶ 18:
In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.
(Once again, Jackson v. Greger, discussed infra at section 1.6:530, should be consulted concerning the applicability of the statutory privilege when waiver of the privilege is at issue.)
The testimonial privilege, set forth in ORC 2317.02(A), states that an attorney "shall not testify"
concerning a communication made to the attorney by a client in that relation or the attorney's advice to a client, except that the attorney may testify by express consent of the client or, if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client. However, if the client voluntarily testifies or is deemed by R.C. 2151.421(A)(2) [pertaining to certain communications resulting in knowledge or suspicion of child abuse or neglect] to have waived any testimonial privilege under this division, the attorney may be compelled to testify on the same subject.
The testimonial privilege established under this division does not apply concerning a communication between a client who has since died and the deceased client's attorney if the communication is relevant to a dispute between parties who claim through that deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction, and the dispute addresses the competency of the deceased client when the deceased client executed a document that is the basis of the dispute or whether the deceased client was a victim of fraud, undue influence, or duress when the deceased client executed a document that is the basis of the dispute.
(The second paragraph was added by amendment effective June 15, 2006.)
As used in ORC 2317.02(A), the term "client" is defined in ORC 2317.021:
"Client" means a person, firm, partnership, corporation, or other association that, directly or through any representative, consults an attorney for the purpose of retaining the attorney or securing legal service or advice from him in his professional capacity, or consults an attorney employee for legal services or advice, and who communicates, either directly or through an agent, employee, or other representative, with such attorney; and includes an incompetent whose guardian so consults the attorney in behalf of the incompetent.
In State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995), the Supreme Court pointed out that the legislature has not similarly defined the term "attorney" as used in ORC 2317.02(A) to include communications with the attorney's agent; as a result, the statutory bar against attorney testimony regarding privileged communications between attorney and client (ORC 2317.02(A)) does not extend to communications between a client and the attorney's agent. Nonetheless, the Court confirmed the existence of a common-law privilege for such communications. McDermott also makes clear that the only exceptions to the statutory privilege are those expressly set forth in ORC 2317.02(A): "The General Assembly has plainly and distinctly stated that the privileges of R.C. 2317.02 are to be given effect absent specific statutory exceptions." Id. at 573, 651 N.E.2d at 987. See sections 1.6:420 and 1.6:520.
The reference in ORC 2317.021 to consultation with "an attorney employee" presumably is intended to make clear that the statutory privilege applies to intra-organizational communications with a lawyer-employee of the organization, e.g., in-house corporate counsel. See 1 Paul C. Giannelli & Barbara Rook Snyder, Baldwin's Ohio Practice, Evidence § 501.10, at 332 & n.103 (2d ed. 2001).
The common-law privilege remains applicable to prohibit the disclosure of attorney-client communications other than by compelled testimony of the attorney (e.g., client testimony, requests for production of privileged documents directed to the client), and to certain attorney testimony that is not prohibited by the statutory privilege, such as communications between the client and the attorney's agent. State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995). See Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 348, 575 N.E.2d 116, 120-21 (1991) ("The attorney-client privilege reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship. Thus, allowing consultation and discussion (even without testifying) of privileged information would effectively emasculate the privilege."). Accord State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824 N.E.2d 990, at para. 26 (introducing the Huffstutler reaches-far-beyond quote with the words "[t]he common-law attorney-client privilege, however,"); In re Martin, 141 Ohio St. 87, 101, 47 N.E.2d 388, 395 (1943) (client cannot be compelled to testify); Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 599 N.E.2d 699 (Wood 1991) (per curiam) (trial court correct when it stated, with respect to discovery request directed to client for counsel's opinion letter, that ORC 2317.02(A) "governs testimony by an attorney. It does not govern testimony by the client." The latter is governed by the common-law privilege. Id. at 486, 599 N.E.2d at 702 (emphasis by the court)). It is implicit in the Mid-American court's analysis that: (1) responses to discovery requests are tantamount to "[testify[ing]," as that term is used in the statute, and (2) requests made of the client seek "client testimony," even where the information sought constitutes advice by the client's attorney. Both the common-law and statutory privileges, of course, are relevant to the ethical obligation of attorneys to protect information relating to the representation, "including information protected by the attorney-client privilege," under Ohio Rule 1.6. See Rule 1.6 cmt.  and discussion at section 1.6:210.
Privileged communications generally: As noted in section 1.6:400, the language of ORC 2317.02(A) limits the statutory testimonial privilege, precluding testimony by the attorney, to communications made to the attorney by the client in that relation or the attorney's advice to the client, and ORC 2317.021 defines a "client" as including one who "consults an attorney for the purpose of retaining the attorney . . . ."
According to one oft-quoted formulation, the privilege accorded communications between an attorney and her client at common law applies only if: (1) the asserted holder of the privilege is or sought to be a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or her subordinate and (b) in connection with this communication she is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by her client (b) without the presence of strangers (c) for the purposes of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Original Grand Jury Investigation, No. L-98-1146, 1999 Ohio App. LEXIS 3368 (Lucas July 23, 1999) (citing United States v. United Shoe Mach. Corp., 89 F. Supp. 357 (D. Mass. 1950) (Wyzanski, J.)), aff'd, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000)). Thus, in Kracht v. Kracht, Nos. 70005, 70009, 1997 Ohio App. LEXIS 2412 (Cuyahoga June 5, 1997), a lawyer's attempt, on privilege grounds, to keep out affidavits of former legal secretaries, documenting his knowing violation of proper service procedures, was rejected because, inter alia, "the affidavits contain no communication with the client, rather they contain statements about how [the lawyer] wanted service to be performed." Id. at *25.
Attorney's general impressions of client: In the absence of waiver, an attorney cannot testify as to a decedent's competency, where the attorney's opinion is based upon knowledge gained during the attorney-client relationship with the decedent and is related to the services he was retained to perform for the decedent. Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961) (syllabus five) (attorney cannot testify as to his deceased client's mental condition based on observations made by attorney during attorney-client relationship, even if knowledge so gained was such as might have been available to any layman who had observed client). In Taylor, the Supreme Court also concluded:
Knowledge communicated to an attorney by his client during the attorney-client relationship, which knowledge relates to the services for which he was employed, whether it is gained from words or merely by observations made by the attorney, falls within the rule relating to privileged communications.
Id. at 118, 173 N.E.2d at 893 (syllabus four). But see Heiselman v. Franks, 48 Ohio App. 536, 194 N.E. 604 (Hamilton 1934), which held that at a trial contesting a will, the decedent's attorney could opine regarding the sanity of the deceased client, based on his contact, communication, relation, and general business dealings with the client. Such general observations are of a non-confidential character; the privilege does not apply. [It is difficult to see how the Heiselman decision survives the Supreme Court's holding in Taylor, even though it has been cited with approval as recently as 1994. See Weierman v. Mardis, 101 Ohio App.3d 774, 656 N.E.2d 734 (Hamilton 1994).]
Communications with licensed attorney: It is the generally accepted view that the attorney-client privilege is confined to communications made to an attorney who has the authority to practice his profession in courts of record. State v. Spirko, 59 Ohio St.3d 1, 570 N.E.2d 229 (1991) (finding no attorney-client relationship, and thus no attorney-client privilege, shielding communications between defendant and a former cell-mate who served as the defendant's "jailhouse lawyer," since the cell-mate was not a licensed attorney). But see Benedict v. State, 44 Ohio St. 679, 11 N.E. 125 (1887) (exception to general rule on facts of case, where prisoner confided in one who practiced law before justices of peace but had not been admitted to the bar).
Communications seeking representation: The statutory attorney-client privilege applies to communications with an attorney by a prospective client seeking representation. Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961) (syllabus one). The rule is the same at common law. King v. Barrett, 11 Ohio St. 261 (1860) (under Ohio common law, communications with an attorney for the purpose of receiving the attorney's professional advice or assistance are generally privileged, even if the lawyer is not retained).
In 1998 the Ohio Supreme Court reiterated the applicable rule:
"Where a person approaches an attorney with the view of retaining his services to act on the former's behalf, an attorney-client relationship is created, and communications made to such attorney during the preliminary conferences prior to the actual acceptance or rejection by the attorney of the employment are privileged communications."
State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 383, 700 N.E.2d 12, 16 (1998) (per curiam) (quoting Taylor v. Sheldon (syllabus one)).
This view is now incorporated into the ethics rules at Ohio Rule 1.18(b). See section 1.18:200.
Hospital incident reports: A hospital incident report, prepared for the hospital's attorney, is subject to protection as an attorney-client communication privileged under ORC 2317.02(A) and therefore not discoverable from the hospital. Flynn v. Univ. Hosp., Inc., 172 Ohio App.3d 775, 2007 Ohio 4468, 876 N.E.2d 1300. In Ware v. Miami Valley Hosp., 78 Ohio App.3d 314, 604 N.E.2d 791 (Montgomery 1992), the trial court erred in treating the issue as one of "work-product," and the fact that the incident report may have related to the care of a patient did not alter its status as a privileged communication. The Ware court relied on In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492 (1936), in support of view that the statutory privilege extends to the communication itself, even though plaintiffs are not seeking to compel disclosure or testimony of the attorney. [Query] An employee may, however, be required to disclose the existence of such reports. Tyes v. St. Luke's Hosp., No. 65394, 1993 Ohio App. LEXIS 5735, at *5 (Cuyahoga Dec. 2, 1993) ("Merely affirming or denying the existence of incident reports does not result in the disclosure of attorney-client communications or the content of such reports."). [It would appear that such reports are more appropriately protected from discovery under the common-law privilege (or ethics confidentiality precepts), rather than the statutory testimonial privilege. See State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995), discussed at section 1.6:520, and Grace v. Mastruserio, 2007 Ohio 3942, 2007 Ohio App. LEXIS 3580 (Hamilton), discussed at section 1.6:530 infra.
Insurance reports: Statements concerning an accident, made by the insured to an agent of his insurer and provided by the insurer to insurer's counsel, constitute communications from client to attorney and are privileged against production and discovery sought by the plaintiff in a suit against the insured. The seminal case espousing this view is In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492 (1936), where the casualty report by an employee of the insured was forwarded by the employer/insured to its insurance company and by the company to its counsel. In holding this report protected by the attorney-client privilege, the Supreme Court reasoned as follows:
Where an insurer receives a report from its insured concerning a casualty covered by its policy of insurance, such report becomes the property of the insurer and subject to its complete control; and, when the insurer transmits it to its counsel for the purpose of preparing a defense against a possible lawsuit growing out of such casualty, such report constitutes a communication from client to attorney and is privileged against production and disclosure under section 11494, General Code [now ORC 2317.02(A)].
Id. at 187, 5 N.E.2d at 492 (syllabus one) (bracketed material added). A critical distinction drawn by the Klemann Court was whether the document in question was a "'document of the client existing before it was communicated to the attorney'" or a "'document which has come into existence as a communication to the attorney. . . .'" Id. at 192, 5 N.E.2d at 494 (quoting Wigmore; emphasis by the Court). The former is not privileged; the latter is. Klemann can best be read as standing for the proposition that the test is whether the document in question came into being in the ordinary course of business (not privileged) or as a document prepared for the attorney (privileged). Id. Underscoring this reading, the Court stated flatly that:
In order for a document to constitute a privileged communication, it is essential that it be brought into being primarily as a communication to the attorney.
Although dated, Klemann continues to be followed in Ohio. E.g., McGuire v. Draper, Hollenbaugh & Briscoe Co., L.P.A., 2002 Ohio 6170, 2002 Ohio App. LEXIS 6003 (Highland) (report, regarding legal malpractice claim against law firm sent by firm to its insurer and forwarded to counsel retained by insurer to defend law firm, protected from disclosure; Klemann syllabus one followed); Breech v. Turner, 127 Ohio App.3d 243, 712 N.E.2d 776 (Scioto 1998). Accord Kraus v. Maurer, 138 Ohio App.3d 163, 740 N.E.2d 722 (Cuyahoga 2000) (reversing trial court order that nonparty insurer turn over its insured's claims file to plaintiff in action against insured; claims file protected by both attorney-client privilege and work-product doctrine). The Kraus court noted that Ohio courts have traditionally permitted discovery of claims files only in instances where prevailing party seeks prejudgment interest or where bad faith is alleged [as to which see the Moskovitz (prejudgment interest) and Boone (allegation of bad faith) cases, discussed below]. With Breech, compare Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 757 N.E.2d 849 (Mahoning 2001) (in insurance coverage litigation, order protecting insurer's claims adjuster from deposition by insured not justified on work-product grounds), where the court distinguished the approach taken in cases such as that before it -- first-party contract dispute cases, between the insured and insurer -- from that employed in cases such as Breech, where the discovery is sought by a third party in litigation with the insured.
In another court of appeals case, Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003 Ohio 2750, 790 N.E.2d 817 (Cuyahoga), the court (in the course of ruling that the contested documents were not protected by the attorney-client privilege and must be produced) distinguished Klemann in the following terms:
While we concede that, in accordance with Klemann, a communication prepared by an insurance carrier [the document in question in Klemann was prepared, not by, but for, the carrier] and transmitted to its attorney would arguably fall under the protections of the attorney-client privilege, we fail to perceive any similarities between the facts of Klemann and the instant matter. Here, Acordia['s]. . .privilege log. . .fails to provide any evidence that any of the contested documents were either prepared by an attorney, at the direction of an attorney or transmitted to an attorney. Accordingly, we find no application of the attorney-client privilege under the instant scenario or under the expanded coverage unique to Klemann.
Simply. . .Acordia provided no evidence that would indicate that the contested documents were prepared for Acordia's insurer and subsequently transmitted to its attorneys to fall within the protections of the attorney-client privilege. Further, the evidence indicates that the contested documents were prepared before Acordia notified its insurer of any pending fear of litigation. Therefore, per Klemann "[a] document by the client existing before it was communicated to the attorney is not within the present privilege so as to exempt it from production." Id. at 192, 7 O.O. 273, 5 N.E.2d 492.
153 Ohio App.3d 28, 790 N.E.2d 817, at ¶¶ 17-18. (bracketed material and ellipses added). The Perfection court went on to note that
if this court were to follow Acordia's contention, we would be endorsing the premise that any internal document generated by a company would in effect become privileged if later transmitted to an insurer. This misconstrued reading of Klemann is without merit because Klemann clearly stands for the proposition that the document does not become privileged until it is transmitted to an attorney.
Id. at ¶ 18. This analysis, of course, begs the question —privilege does not attach merely because a document is "transmitted to an attorney"—it is entitled to protection only if it is prepared, not in the ordinary course of business, but for the attorney. (Although such a document, by the very nature of things, has to "exist before it was communicated to the attorney," we believe the proper reading of this language is that it was in existence other than as a communication to the attorney.) That seems to be the case with respect to the documents at issue in Perfection -- they were prepared internally two years before any threat of litigation and, while later forwarded to Acordia's insurer, there was no evidence that they were transmitted to an attorney in any event.
On the insurance-report issue, language in ORC 2317.021 can be invoked in support of the Klemann result: it accords the privilege to communications by a client to the attorney "through an agent, employee, or other representative." Accord 1 Paul C. Gianelli & Barbara Rook Snyder, Baldwin's Ohio Practice, Evidence § 501.8, at 326-27 (2d ed. 2001) ("The statute also provides that . . . communications by a client 'through an agent, employee, or other representative' are privileged," citing, in addition to Klemann, other Supreme Court cases finding indirect communications privileged).
McCormick supports the view that the privilege should be accorded from a policy standpoint, while admitting that the law is not yet entirely settled:
And the law is in the making on the question whether a report of accident or other casualty, by a policy-holder or his agents to a company insuring the policy-holder against liability, is to be treated as privileged when the insurance company passes it on to the attorney who will represent both the company and the insured [citing in footnote, inter alia, Klemann as a case in which the privilege was accorded]. Reasonably the insurance company may be treated as an intermediary to secure legal representation for the insured, by whom the confidential communication can be transmitted as through a trusted agent. A report to a liability insurer can have no purpose other than use in potential litigation.
1 Kenneth S. Brown, McCormick on Evidence § 96, at 436 (6th ed. 2006).
Finally, whatever the merits of the Klemann analysis regarding privilege in the abstract, it seems reasonably clear that it should come under the common-law protection, not that of the statute, which by its express terms is limited to protecting privileged communications from disclosure by the attorney.
Prejudgment-interest proceeding raising issue of lack of good faith effort to settle; insurer's claim file: Pursuant to Moskovitz v. Mt. Sinai Medical Center, 69 Ohio St.3d 638, 639, 635 N.E.2d 331, 334-35 (1994) (syllabus three), in a post-trial proceeding for prejudgment interest under ORC 1343.03(C), "[t]he only privileged matters contained in the [insurer's claims] file are those that go directly to the theory of defense of the underlying case in which the decision or verdict has been rendered." The Court further stated that
statements, memoranda, documents, etc. generated in an attorney- client relationship tending to establish the failure of a party or an insurer to make a good faith effort to settle a case contrary to the purposes of R.C. 1343.03(C) are not protected from discovery in an R.C. 1343.03(C) proceeding for prejudgment interest. Stated otherwise, if, through the lack of a good faith effort to settle, the purposes of R.C. 1343.03(C) have been thwarted by a party and/or the attorneys involved in the case, a search for the truth of that fact cannot be hindered by claims of attorney-client privilege. Documents and other things showing the lack of a good faith effort to settle by a party or the attorneys acting on his or her behalf are wholly unworthy of the protections afforded by any claimed privilege.
Id. at 661, 635 N.E.2d at 349 (see also discussion of Moskovitz at sections 1.6:620, 1.6:710, and 1.6:740). In Radovanic v. Cossler, 140 Ohio App.3d 208, 746 N.E.2d 1184 (Cuyahoga 2000), the court quoted extensively from and followed Moskovitz; it concluded that in Moskovitz "the Supreme Court has essentially found that otherwise privileged documents may lose their privilege for purposes of prejudgment interest discovery." Id. at 216, 746 N.E.2d at 1190. The Radovanic court also ruled that documents found in the file, such as physicians' evaluations, witness credibility analysis, and comments regarding likelihood of success on the merits, are not documents that "go directly to the defense of the case; rather, the documents are the type of documents needed to indicate whether or not prejudgment interest is warranted." Id. at 217, 746 N.E.2d 1191.
In addition to the material held not protected by the privilege in Moskovitz, the following have been held not to be privileged communications:
Bad-faith insurance litigation; insurer's claim file: In a case in which plaintiff alleged a bad-faith denial of coverage by the defendant insurance company, Boone v. Vanliner Insurance Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (2001), the injured plaintiff sought access to defendant's claims file. Defendant Vanliner argued that certain of the claims-file documents were protected by the attorney-client privilege and/or the work-product doctrine. After an in-camera inspection, the trial court, applying Moskovitz, found that of the over one thousand documents in the file, 175 were protected from discovery. On appeal, Vanliner argued that the lower court had incorrectly ordered it to disclose 30 protected documents. The court of appeals found Moskovitz inapplicable and held that Vanliner need produce only one document in its entirety, and that the other 29 were privileged in whole or in part.
The Supreme Court affirmed in part and reversed in part. Finding the Moskovitz rationale applicable, the Court ruled that "claims file materials that show an insurer's bad faith in denying coverage are unworthy of protection." Id. at 213, 744 N.E.2d at 158. The Court distinguished documents created after the denial of coverage (protected by the privilege and/or work product) from those created before, since the conduct in question in a bad-faith denial claim necessarily occurred prior to the denial of coverage:
Therefore, the only attorney-client and work-product documents that would contain information relating to the bad faith claim, and, thus, be unworthy of protection, would have been created prior to the denial of coverage.
For the foregoing reasons, we hold that in an action alleging bad faith denial of insurance coverage, the insured is entitled to discover claims file materials containing attorney-client communications related to the issue of coverage that were created prior to the denial of coverage. At that stage of the claims handling, the claims file materials will not contain work product, i.e., things prepared in anticipation of litigation, because at that point it has not yet been determined whether coverage exists.
Id. at 213-14, 744 N.E.2d at 158. (The syllabus tracks verbatim the language of the first sentence beginning "in an action" of the paragraph quoted immediately above. Id. at 209, 744 N.E.2d at 154). The Court rejected Vanliner's argument that Moskovitz was modified by the subsequent holding in McDermott: "The flaw in Vanliner's argument is that McDermott addresses client waiver of the privilege, whereas Moskovitz sets forth an exception to the privilege and is therefore unaffected by our holding in McDermott." Id. at 213, 744 N.E.2d at 157. See section 1.6:520. Justice Douglas wrote for the majority in both Moskovitz and Boone.)
In dissent, three justices criticized the "unworthy of protection" rationale applied in Moskowitz and Boone as unsupported by law, and noted that this rationale improperly equates the Moskowitz "exception" with the crime/fraud exception, but without the prima-facie showing required to invoke the latter, whereas a mere allegation of bad faith would be sufficient to invoke the exception recognized here. Id. at 215, 744 N.E.2d at 159.
The Second District Court of Appeals followed Boone in holding claims-file materials created prior to the denial of a claim not protected by the privilege in a bad-faith denial-of-claim case. Garg v. State Auto. Mut. Ins. Co., 155 Ohio App.3d 258, 2003 Ohio 5960, 800 N.E.2d 757 (Miami). The court rejected the argument that the Boone holding of no privilege was limited to documents relating to coverage, as opposed to documents relevant to the bad-faith denial issue:
Under Boone, neither attorney-client privilege nor the work-product doctrine protects materials in a claims file, created prior to the denial of the claim, that may cast light on whether the insurer acted in bad faith in handling an insured's claim.
Id. at ¶ 24. The Boone decision and its progeny are discussed in Michael Brittain & Shelly K. Hillyer, Insurance bad-faith litigation in the post-Boone v. Vanliner era, Ohio Law., Jan./Feb. 2006, at 16.
Communication by attorney to agent regarding service: Where the evidence sought to be protected under the attorney-client privilege related solely to how an attorney wanted his agent to handle service of process, the court determined that such communications were not protected by the privilege because they were neither communications between attorney and client nor did they reveal privileged client communications. Kracht v. Kracht, Nos. 70005, 70009, 1997 Ohio App. LEXIS 2412 (Cuyahoga June 5, 1997).
Communication by attorney to client regarding court settings: State v. Kemper, 158 Ohio App. 3d 185, 2004 Ohio 4050, 814 N.E.2d 540 (Clark), held that communications by the lawyer to the client concerning such matters as providing the client with notice of a hearing date are not privileged communications because they are not "advice" as required by ORC 2317.02. Accord Antoine v. Atlas, 66 F.3d 105, 110 (6th Cir. 1995) ("an attorney's message to his client concerning the date and time of court proceedings is not a privileged communication"). Hazard and Hodes describe such communications as ones involving the lawyer's acting as a "conduit," rather than a confidant. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.7, at 9-28 (3d ed. Supp. 2004-2). 1 Restatement (Third) of the Law Governing Lawyers § 69 cmt. i (2000) is to the same effect.
Existence of attorney-client relationship: The creation or existence of the attorney-client relationship is not a privileged communication, as it is not a communication connected with the business for which the attorney has been retained. In re Martin, 141 Ohio St. 87, 103-04, 47 N.E.2d 388, 395-96 (1943). Furthermore, failure to reveal the relationship may undermine the assertion of attorney-client privilege with respect to other questions regarding the relationship and communications between the client and the attorney. Id. at 105, 47 N.E.2d at 396. (For the view that the fact of representation is, however, information relating to representation protected by Rule 1.6, see Deborah A. Coleman, New Ohio Ethics Rules, Cleve B.J., Oct. 2006 8, 9.)
Facts are not within the privilege: The attorney-client privilege applies only to communications and not to facts. E.g., 1 Geoffrey C. Hazard, Jr., & W. William Hodes, The Law of Lawyering § 9.7, at 9-26 (3d ed. Supp. 2004-2); 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Federal Rules of Evidence § 5484, at 320 (1986). (Compare the broader protection provided by Ohio Rule 1.6(a) to "information relating to the representation.") Thus, while inquiry into the communications between the attorney and the client is barred, it has been held that the facts themselves are not protected by the privilege and must be revealed by the attorney in response to an appropriate discovery request or question at trial. Hawgood v. Hawgood, 33 Ohio Misc. 227, 294 N.E.2d 681 (C.P. Cuyahoga 1973) (addressing only privilege issue). See State ex rel. Beacon Journal Publ'g Co., 134 Ohio App.3d 415, 424, 731 N.E.2d 245, 252-53 (Franklin 1999) (addressing both privilege and DR 4-101 in context of Ohio Public Records Act request). See further discussion of this issue and the Hawgood case in section 1.6:430 below.
Knowledge of negative information about the client gained from other than confidential communications is not within the privilege: An attorney's knowledge of his client's prior criminal record, which knowledge is not dependent upon confidential communications from the client, is not privileged. Cincinnati Bar Ass'n v. Nienaber, 80 Ohio St.3d 534, 687 N.E.2d 678 (1997) (per curiam). (But it would be information protected under Rule 1.6(a) if "related to the representation." See section 1.6:210.)
Information about fees: "[B]asic information about the fee agreement, such as the attorney's ‘“fee, the contract therefore [sic], and the amount thereof,”’ are not privileged." Susan J. Becker, Jack A. Guttenberg & Lloyd B. Snyder, Ohio Law of Professional Conduct (§ 7.07, at 7-20 (2007-08 ed.) (quoting from In re Martin, 141 Ohio St. 87, 104, 47 N.E.2d 388, 396 (1943), which in turn is quoting from Ruling Case Law).
Use of defense expert: Where the prosecution called a defense-retained expert to testify for the state, the Court refused to find a violation of attorney-client privilege. The testimony did not disclose or rely upon any confidential communication, and the expert based his testimony upon the physical evidence, reports, and photographs. Even had the privilege applied, the Court noted that the defendant waived its protection by not objecting to the testimony. State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915 (1992). (Since no attorney testimony was involved, presumably the Court was dealing with the common-law privilege.) On the necessity of raising an objection to preserve the privilege, see section 1.6:510.
See section 1.6:710 for a discussion of the term "privileged" as used in OH Civ R 26(B)(1) and (3).
In addition to clients, prospective clients are also entitled to attorney-client privilege protection with respect to communications with a lawyer seeking representation, irrespective of whether the lawyer is actually retained. Ohio Rule 1.18(b). This principle was recognized under the former OHCPR; see, e.g., State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam). See sections 1.6:220, 1.6:410, and 1.18:200.
Former corporate employer of agent of corporation's counsel: An engineer, who during his employment with a motor vehicle manufacturer had attended law school and passed the Ohio bar, and who had worked closely with the company's legal department and outside counsel for the company in product liability cases, was permanently enjoined from disclosing trade secrets, confidential information, and matters of attorney-client privilege and attorney work-product. The Supreme Court reasoned that the employee had been, at a minimum, an agent acting on behalf of the company's legal counsel and as such was subject to the same restrictions as a lawyer when leaving the company's employment with confidential information. Thus, the company could invoke the privilege to prevent the former employee from testifying against the company or providing assistance to opposing counsel. Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991). (See further discussion of Huffstulter at section 1.6:475, in the context whether the voluntary disclosure of information at issue in Huffstutler should have been protected under the ethics confidentiality obligation, not the privilege, which is concerned with protecting against compelled testimony.)
In another corporate privilege case, Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Franklin), a former officer sued his corporation for wrongful termination. His complaint included allegedly privileged communications by and with the corporation's in-house counsel. The corporation moved to strike the material and for a protective order precluding plaintiff from divulging other information covered by the privilege between the corporation and its counsel. The trial court denied the motions; the appellate court reversed. Prior to his termination, plaintiff had sought a legal opinion regarding proposed company action. The court of appeals held that as to this information, "the attorney-client privilege belongs to the company and not to its employees outside their employment capacity." Id. at para. 10. While current executives may assert or waive the corporate attorney-client privilege if authorized to do so, "that authority ends with the termination of employment or other revocation of authority." Id. The court accordingly held that the privilege extended to the documents and communications in possession of plaintiff, which information he had obtained in the course of his employment, where those materials were provided by company counsel, the company was the client, and plaintiff received such material in his capacity as an employee. Nor was there any indication of any intention of waiver by the company. Noting that ORC 2317.02 [sic 2317.021] acknowledges that an entity can communicate with counsel only through agents or employees, the court reasoned that a holding of waiver based simply on allowing an executive to act as the agent of the company in dealing with legal counsel "would be to essentially eliminate the existence of attorney-client privilege for all collective entities, a result that the statute manifestly does not seek." Id. at para. 11. (Once again, statutory privilege analysis seem inappropriate here; the corporation was seeking to prevent the voluntary disclosure by the nonlawyer plaintiff of privileged materials of the company.)
Custodian of police records: A police chief, having custody and control of the police department records made in the detection and prevention of crime, had no privilege to refuse to disclose those records upon the taking of his deposition in a civil suit for wrongful death against two police officers. Nor do those records, if not otherwise privileged, become privileged merely because they may have been or would be turned over to the attorneys for the city, who were representing the officers in the wrongful death action. In re Story, 159 Ohio St. 144, 111 N.E.2d 385 (1953).
Witness receiving advice from lawyer: Absent the personal relationship of attorney and client relating to the matter, advice and counsel by an attorney to a witness or potential witness does not, in itself, establish an attorney-client relationship. Thus, the witness or potential witness will be unable to assert the protection of the attorney-client privilege set forth in ORC 2317.02(A) to prevent the attorney from testifying regarding these communications. State v. Perry, Nos. 97CA61, 98 CA5, 1998 Ohio App. LEXIS 6133 (Miami Nov. 25, 1998.
Intent: For the privilege to attach, the client must intend the communication to be of a confidential nature. If there is no such intent, there is no privilege. Walsh v. Barcelona Assocs., Inc., 16 Ohio App.3d 470, 472, 476 N.E.2d 1090, 1093 (Franklin 1984) ("By its very nature, a communication from a client to his attorney conveying authority to the attorney to act on his behalf as his agent in entering into an agreement with the opposing party, is a communication which is intended to be communicated to the opposing party. Because such a conversation is not intended to be confidential, it is not privileged."). Accord Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 599 N.E.2d 699 (Wood 1991) (per curiam) (affirming order compelling defendant to disclose opinion letter of defendant's independent counsel on ground, inter alia, that language of earlier letter by defendant committing to let plaintiff know what independent counsel advises ("Upon receipt of the attorneys [sic] recommendations, we will advise you accordingly") indicated that defendant did not intend to keep the opinion of independent counsel confidential. Id. at 487-88, 599 N.E.2d at 703-04 (bracketed material by court)); Lutz v. Carter, No. 2660, 1990 Ohio App. LEXIS 4342, at *12 (Ohio App. Clark Oct. 3, 1990) (negotiated lease agreement; privilege applies to "communications made by the client to their [sic] attorney with the intent that the communications remain confidential"; "[b]ased on the underlying principle of confidentiality, the attorney-client privilege excludes communications made to an attorney by his client when it is manifestly the client's purpose that those matters communicated be relayed to the attorney representing the other parties involved"); Johndahl v. Columbus Trotting Ass'n, 104 Ohio App. 118, 147 N.E.2d 101 (Franklin 1956) (syllabus eight) (client's disclosures to attorney were not privileged, in view of fact that such communications were made, inter alia, with intention that facts so communicated would be included in application for incorporation and thus become public property). Compare State ex rel. Benesch, Friedlander, Coplan & Arnoff, L.L.P. v. City of Rossford, 140 Ohio App.3d 149, 746 N.E.2d 1139 (Wood 2000) (decided under Ohio Public Records Act; portions of document drafts containing confidential information, sent to government client for review but not intended for public dissemination except to extent included in documents in final form, were not "public records" and were protected from disclosure by attorney-client privilege under ORC 149.43(A)(1)(p) (now ORC 149.43(A)(1)(v))). For a case drawing the distinction between facts intended to be communicated to a third party (unprivileged) and the direct client-lawyer communication containing those facts (privileged), see Hawgood v. Hawgood, 33 Ohio Misc. 227, 294 N.E.2d 681 (C.P. Cuyahoga 1973) ("attorney Kraus may not testify to any direct conversations he had with Mrs. Hawgood, his client, but he may be compelled to testify to the facts which resulted from those conversations which indicate her intention to enter into a separation agreement." Id. at 233, 294 N.E.2d at 685.
This distinction between the communication itself and the facts communicated is well-established (see, e.g., Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981)) but can be tricky. Guidance on the issue is found in 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.7 (3d ed. Supp. 2004-2 & 2005-2). To begin, Hazard and Hodes repeat the general understanding, "long established in the law," that the privilege does not directly protect against disclosure the substance of the underlying communication between lawyer and client, but only the content of the communication itself. As a result, a client could be compelled to testify about the underlying facts. Id. at 9-26. The lawyer, however,
generally may not be compelled to testify about the underlying facts in the same way, because in most situations the lawyer would not know the facts unless the client had communicated them to the lawyer. Thus, a lawyer's statement about the facts is usually an implicit statement about what the client communicated about the facts, and is therefore usually privileged.
Id. n. 9, at 9-158 (emphasis in original).
Finally, in connection with the communication/underlying-fact distinction, is the aspect of "intended confidentiality":
Clients provide lawyers with a surprisingly large amount of information that is intended for transmittal to others; by definition such communications cannot fall under the protection of the attorney-client privilege.
Id. at 9-28 (emphasis in original). Under the Hazard and Hodes analysis, the Walsh case and others discussed above, holding that the communication itself ("conversation"; "opinion letter"; etc.) is not privileged, because not intended to be confidential, are good law. The Hawgood case, holding that the lawyer could be compelled to testify about the underlying facts, but not about the client-lawyer communication itself, is more problematical. According to Hazard and Hodes, neither should be protected by the privilege, because the "communication" as to the client's approval of the separation agreement was intended to be conveyed to the other side: In the words of the Hawgood court, "[t]his [approval] was in a confidential communication, but it was made for the purpose of advising opposing counsel that an assent to an agreement existed . . . ." 33 Ohio Misc. at 234, 294 N.E.2d at 685.
Presence of nonagent third party: It has been held that the privilege does not apply to communications between attorney and client made in the known presence of a third party who is not an agent of the attorney or the client. Whigham v. Bannon, 21 Ohio App. 496, 153 N.E. 252 (Scioto 1926), stating that the language in what is now ORC 2317.02(A) ("a communication made to the attorney by a client in that relation") "refers only to communications made to him in a confidential manner, and that such confidential manner does not exist where a third person, not the agent of either party, shares the confidence." Id. at 506, 153 N.E. at 255. Accord Village of Lakemore v. George, No. 13620, 1988 Ohio App. LEXIS 4054 (Summit Oct. 12, 1988) (telephone conversation by client to attorney in known presence of police officers); Abate v. Abate, No. 1099, 1983 Ohio App. LEXIS 15101, at *4 (Geauga Dec. 9, 1983) (statements made in the presence of third parties "cease to be privileged."); State v. Harris, No. 36777, 1978 Ohio App. LEXIS 10414, at *30 (Cuyahoga May 25, 1978) ("The privilege is dependent upon the confidentiality of the communication and when there is no confidentiality, no privilege exists."); see also In re Estate of Eliker, 32 Ohio Law Abs. 465, 471 (Darke 1940) (dictum: "If at the time that [her lawyer] talked to Mrs. Eliker respecting her wishes and directions as to the contents of her will Dr. Metcalf [nonagent third party] had been present and heard all of the conversation, it could not successfully be urged that these communications were privileged.").
The privilege does apply, however, when the third party is an agent of either the attorney or the client. Foley v. Poschke, 137 Ohio St. 593, 595, 31 N.E.2d 845, 846 (1941) (per curiam) (confidential communications in presence of agent of client held privileged under predecessor to ORC 2317.02(A): "The general rule that communications between an attorney and his client in the presence of a third person are not privileged, does not apply when such third person is the agent of either the client or the attorney."). Where the third party is a close relative of the client, the privilege may still attach to the communications between attorney and client. State v. Shipley, 94 Ohio App.3d 771, 641 N.E.2d 822 (Licking 1994) (without discussing its rationale, the court held that presence of client's brother did not operate as waiver with respect to privileged communications between attorney and client) (citing Bowers v. State, 29 Ohio St. 542, 546 (1876) (communication in presence of minor client's mother did not destroy the privilege; characterizing the mother as "being present and acting in the character of confidential agent of her daughter."))). But see State v. Whitaker, No. CA97-12-123, 1998 Ohio App. LEXIS 4838 (Warren Oct. 12, 1998) (distinguishing Bowers because client in Whitaker was not a minor).
Whigham involved attorney testimony and thus was decided under the statutory attorney-client privilege. The court of appeals construed the statutory words "communication made to him by a client in that relation" to mean "communications made to him in a confidential manner." 21 Ohio App. at 506, 153 N.E. at 255.
This reading conforms to the accepted general rule that the privilege covers only communications intended to be confidential and therefore would not apply to communications in the presence of known nonagent third parties. See generally 1 Restatement (Third) of the Law Governing Lawyers § 71 cmt. c & illus. 2 (2000). That would clearly be the result in Ohio at common law, in situations where the statutory testimonial privilege does not apply. See Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 486, 599 N.E.2d 699, 702 (Wood 1991).
Whether the outcome should be the same under the statutory privilege set forth in ORC 2317.02(A), as the court held in Whigham, is not clear. In terms of confidentiality, a certain amount of tension exists between (1) the absence of privilege, under the Wigham analysis of the statute, of communications made in the known presence of a nonagent third party, and (2) the existence of the statutory privilege, even though the client subsequently discloses the communication to a third party, as the Supreme Court held in State v. McDermott, 72 Ohio St.3d 570, 573, 651 N.E.2d 985, 987 (1995) ("The General Assembly has plainly and distinctly stated that the privileges of R.C. 2317.02 are to be given effect absent specific statutory exceptions."). (McDermott is discussed in detail at section 1.6:520.) See also Swetland v. Miles, 101 Ohio St. 501, 501, 130 N.E. 22, 22 (1920) (syllabi two & three). Indeed, one of the pre-McDermott cases involving subsequent disclosure to a third party (which disclosure McDermott held did not waive the statutory privilege) reasoned that there was a waiver under the statute because "it was to all intents and purposes the same situation which would have attended had Dr. Metcalf [the third party] been present when Mrs. Eliker [the client] instructed Mr. Myers [the attorney] to prepare her will." In re Estate of Eliker, 32 Ohio Law Abs. 465, 471 (Ohio App. Darke 1940).
There are a number of Ohio Supreme Court decisions, however, containing general language consistent with the view that, separate and apart from the issue of subsequent waiver by the client, the privilege (whether statutory or common-law) does not attach in the first place unless the communication is confidential. See, e.g., State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 249, 643 N.E.2d 126, 130 (1994) (per curiam) ("the attorney-client privilege is based on the premise that confidences shared in the attorney-client relationship are to remain confidential"); Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 348, 575 N.E.2d 116, 120 (1991) ("The attorney-client privilege reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained [by the attorney] in the confidential relationship.") Waldmann v. Waldmann, 48 Ohio St.2d 176, 177, 358 N.E.2d 521, 522 (1976) (per curiam) (applying ORC 2317.02(A)); Foley v. Poschke, 137 Ohio St. 593, 594, 31 N.E.2d 845, 846 (1941) (per curiam) ("while Mr. Spooner [the attorney] testified to some matters which were not privileged, he also testified as to matters which were of a confidential nature"; admission of such testimony by trial court violated predecessor to ORC 2317.02(A)); Spitzer v. Stillings, 109 Ohio St. 297, 299, 142 N.E. 365, 366 (1924) (applying predecessor to ORC 2317.02(A)); see also Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 4, 688 N.E.2d 258, 261-62 (1998) ("A fundamental principle in the attorney-client relationship is that the attorney shall maintain the confidentiality of any information learned during the attorney-client relationship."). As a matter of construction, it can fairly be argued that the statutory words "in that relation" [i.e., the attorney-client relation] are congruent with "the confidential relationship" referred to by the Court in Huffstutler, 61 Ohio St.3d at 348, 575 N.E.2d at 120; if so, it would follow that any communication between attorney and client in the known presence of a nonagent third party, by definition not confidential, would not be within the protection of the statute to begin with. This is the Whigham analysis. On the other hand, ORC 2317.02(A) provides that an attorney "shall not" testify, subject only to the exceptions set forth in the statute, which exceptions do not include the client's knowing acquiescence to the presence of a nonagent third party during communications with his or her attorney. Somewhat surprisingly, there appear to be no post-McDermott cases directly addressing this issue, although two subsequent Supreme Court opinions do reconfirm the exclusivity of the ORC 2317.02(A) provisions for waiver of the privilege concerning direct communications between attorney and client. Jackson v. Greger, 110 Ohio St.3d 448, 2006 Ohio 4968, 854 N.E.2d 487; Allen County Bar Ass'n v. Williams, 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973, at para. 9. The Jackson case is discussed in detail in section 1.6:530 at "Implied waiver of privilege by client."
Whether the Whigham view of the statutory privilege will ultimately be endorsed by the Supreme Court remains to be seen. In light of McDermott, we suspect not, given the absence of a specific exemption in ORC 2317.02(A) for statements made in the presence of nonagent third parties. Such statements, however, will be protected by the common-law privilege
Conversations by client and third party overheard by lawyer not privileged: The attorney-client privilege is not available with respect to conversations that an attorney overhears between his client and a third party. State v. Broady, 41 Ohio App.2d 17, 321 N.E.2d 890 (Franklin 1974) (generally, attorney may not assert privilege to preclude testimony regarding statements made by his client to attorney representing another party, but since record did not clearly indicate that invocation of privilege was objected to, and testimony of attorney would have been cumulative in any event, assignment of error premised on assertion of privilege overruled).
ORC 2317.02(A) prohibits attorneys from testifying concerning their advice to a client, subject to the statutory exceptions set forth therein. See section 1.6:400. Such communications are protected under the common-law attorney-client privilege as well. See generally 1 Kenneth S. Brown, McCormick on Evidence § 89, at 401 (6th ed. 2006).
Billing information: The issue has been raised nationally whether a lawyer can disclose billing information to third parties. The issue most frequently arises in insurance representation where the insurer or its third-party auditor seek such information to determine if a billing is justified. A billing statement may describe the services provided the client in such a way as to disclose information relating to the representation and/or information protected by the privilege. According to ABA, Annotated Model Rules of Professional Conduct 96 (6th ed. 2007) (commentary), the majority position is that a lawyer is impliedly authorized to give detailed billing information to the insurer if not adverse to the insured's interests, but that she may not provide the information to a third-party auditor without the insured's informed consent.
There is at least one ethics opinion in Ohio dealing with this subject under the OHCPR, and it is consistent with the general view with respect to disclosure of billing information in connection with an audit of the lawyer's statement by an insurance company's outside auditors. See Bd. of Comm'rs on Grievances & Discipline Op. 2000-2, 2000 Ohio Griev. Discip. LEXIS 2 (June 1, 2000) (advising that former EC 4-3 did not authorize disclosure to outside auditing firm of legal bills that might reveal client confidences and secrets without client consent). See further discussion of Opinion 2000-2 at section 1.6:310.
Name or address generally not afforded privilege: Despite early precedent asserting a blanket rule that the attorney-client privilege included protection of the client's name and address, see In re Heile, 65 Ohio App. 45, 49, 29 N.E.2d 175, 177 (Hamilton 1939), this is no longer the rule. Today, whether the privilege extends to a client's identity or whereabouts will be determined by the circumstances of each case. First, is the client's name or address one of the facts about which the client seeks legal advice or assistance? Usually it is not, and thus identity and whereabouts are not privileged information. See Lemley v. Kaiser, 6 Ohio St.3d 258, 452 N.E.2d 1304 (1983). Even if identity or whereabouts are pertinent to the legal advice sought (or, as in Lemley, if the confidentiality of these facts is integral to the wrongful scheme the lawyers were furthering), public policy concerns may override the privilege. Pursuant thereto, the Court in Lemley, quoting with approval the language of the Appellate Division in Tierney v. Flower, 302 N.Y.S.2d 640, 643 (App. Div. 1969), concluded that disclosure is required if
"injury would result to the proper administration of justice 'immeasurably greater than the benefit that would inure to the relation of attorney and client.' * * * [Thus,] 'when the attorney's assertion of a privilege is a cover for cooperation in wrongdoing,'" . . . . the names and addresses of appellants' alleged clients are not entitled to the cloak of protection afforded by the attorney-client privilege.
Id. at 265-66, 452 N.E.2d 1304, 1311-12 (citations for inner quotations omitted by Lemley Court).
Applying this test, the Supreme Court in Lemley held that the attorneys could not conceal the identity and whereabouts of the alleged clients they were aiding in illegally adopting a child and affirmed the issuance of a writ of habeas corpus ordering the return of the child or, in the alternative, revelation of the child's whereabouts. (Lemley is also discussed in section 1.6:620 at "Unlawful adoption.") In contrast, the Court did find a client's whereabouts to be privileged in the circumstances presented in Waldmann v. Waldmann, 48 Ohio St.2d 176, 358 N.E.2d 521 (1976) (per curiam). In reversing a contempt citation resulting from the attorney's refusal to disclose the address of his client in a divorce action, the Court stated as follows:
The confidentiality of a client's address in a domestic relations matter, especially a divorce action, can be a vital feature of the action; it is not uncommon for a spouse who fears for her or his safety to need assurance that their [sic] whereabouts will not be disclosed. If a client feels that confidentially divulged matters will not be protected, facts may be withheld which are necessary to competent representation.
Id. at 177, 358 N.E.2d at 522 (footnote omitted; bracketed material added). See also Miller v. Begley, 93 Ohio App.3d 527, 639 N.E.2d 139 (Butler 1994) (affirming refusal to compel attorney's disclosure of name of client who consulted attorney about client's possible involvement in hit-skip automobile accident; revelation of identity would expose client to possible civil and criminal liability; thus client's identity integrally involved in the matter about which he sought attorney's advice); In re Burns, 42 Ohio Misc.2d 12, 16, 536 N.E.2d 1206, 1209 (C.P. Hamilton 1988) (refusing to compel disclosure of identity of client who consulted with attorney regarding reporting of crime and possible discovery of client's participation in it; "one of the matters about which the client conferred with Burns was whether to reveal his identity. It can hardly be argued that a client who consults an attorney about whether a criminal act has been reported, and whether the client's connection with the criminal act has been discovered, is not consulting with the attorney regarding his name and identity.").
The Burns opinion provides an overview of this issue. After canvassing the Ohio name-and-identity cases, the court in Burns concluded that (1) name and identity are in most instances not one of the facts about which the client seeks advice, but (2) if it is, then name and identity are confidential. (3) The privilege is lost if used in an attempt to hide the attorney's cooperation in the client's wrongdoing. Since "one of the matters about which the client conferred with Burns was whether to reveal his identity," the court held that it was within the privilege and that the privilege was not lost because of cooperation in the client's wrongdoing "because the crime or crimes were completed before the client consulted the attorney." 42 Ohio Misc.2d at 13-16, 536 N.E.2d at 1207-09. [But query whether the Burns facts might be construed as the lawyer's cooperation in a "cover-up."]
Even if not within the privilege, remember that client identity may be protected by Rule 1.6 as "information relating to the representation." See Deborah A. Coleman, New Ohio Ethics Rules, Clev. B.J., Oct. 2006, at 8, 9. See also ABA, Annotated Model Rules of Professional Conduct 95 (6th ed. 2007) (commentary) (general rule is that client identity protected by MR 1.6, whereas it is not, as general rule, protected by attorney-client privilege).
Bar association opinions discussing the reach of the privilege relating to a client's whereabouts include Ohio State Bar Ass'n Informal Op. 95-4 (Mar. 7, 1975) and Ohio State Bar Ass'n Informal Op. 86-8 (Dec. 18, 1986). See also section 1.6:320.
Third-party address: Privileged information must relate to the business and interests of the client. While the address of a third party (the client's son) might arguably have been privileged as relating to the business and interest of the client, there was nothing in the record to show that the client ever made any communication on the subject to her attorney. Waldmann v. Waldmann, 48 Ohio St.2d 176, 358 N.E.2d 521 (1976) (per curiam).
See also discussion of the crime-fraud exception to the attorney-client privilege at section 1.6:620.
If there is no intent to secure legal assistance from the attorney, there is no privilege: A communication is not privileged merely because it is made to an attorney. A client's communications to the attorney must be made with the intent of securing legal assistance. See ORC 2317.02(A) ("concerning a communication made to the attorney by a client in that relation"); Ohio Rule 1.6(a) ("information relating to the representation of a client"). The attorney's communications to the client must also be made with the aim of providing legal assistance or gaining sufficient knowledge of the facts relating to the representation to provide such assistance. See In re Martin, 141 Ohio St. 87, 103-04, 47 N.E.2d 388, 395-96 (1943).
Thus, the privilege was denied where the accused, knowing that the attorney with whom he was speaking served as prosecutor for such cases before the police court, made statements to the prosecutor, not for the sake of hiring that attorney, but for the sake of "seeing what could be done" about the case. The attorney stated plainly that he could not represent the accused. The court determined that the accused did not make these statements to the attorney for the purpose of acquiring legal representation from the attorney and found the attorney's testimony regarding the statements made to him by the accused admissible. Whalen v. State, 26 Ohio App. 335, 159 N.E. 481 (Cuyahoga 1927).
See also Rule 1.18 (prospective clients).
ORC 2317.021 defines "client" to include a "person, firm, partnership, corporation or other association." It also provides that, where a corporation or association having the privilege has been dissolved, the privilege shall extend to the last board of directors, their successors or assigns, or to the trustees, their successors or assigns.
See Ohio Rule 1.13(a), which emphasizes that the "client" of an attorney employed or retained by an organization is the entity, not any of the constituents of the entity, such as officers, directors, or shareholders. Accord Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Franklin), discussed in section 1.6:420 supra; Stuffleben v. Cowden, 2003 Ohio 6334, 2003 Ohio App. LEXIS 5676 (Cuyahoga). And see section 1.7:340 (conflict of interests in representing organizations).
For a discussion of the special duties owed organizational clients by their lawyers, see sections 1.13:200-:350.
Communications for multiple organizations: Where a natural person, on behalf of two corporations, makes contemporaneous communications to an attorney, and the corporations later become opposing parties in a lawsuit, the attorney-client privilege does not preclude the attorney from testifying as to information pertaining solely to the corporation waiving the privilege. Knowlton Co. v. Knowlton, 10 Ohio App.3d 82, 460 N.E.2d 632 (Franklin 1983) (court so stated in its syllabus three, but actual holding was that trial court did not abuse its discretion in entering protective order precluding plaintiff corporation from deposing its former attorney where attorney in transaction at issue had also represented defendant spokesman and the other corporation, where no prejudice shown, and where unclear that attorney could testify as to communications made on behalf of plaintiff corporation separately from other corporations involved.) [Query whether there is any privilege vis-a-vis the two corporations (as opposed to third parties) in any event. See section 1.6:480.]
Employee communications with counsel: "Communications made to an employer's counsel by employees are encompassed within the attorney-client privilege. The privilege does not prevent disclosure by the employees of the underlying facts. It does, however, protect against compelled disclosure of the actual attorney-client communications made by employees when the communications are made in anticipation of litigation." Tyes v. St. Luke's Hosp., No. 65394, 1993 Ohio App. LEXIS 5735, at *4 (Ohio App. Cuyahoga Dec. 2, 1993) (citing Upjohn Co. v. United States, 449 U.S. 383 (1981)). [Note that, contrary to the implication of the court's language, there is no limitation of the protection of the privilege to communications made in anticipation of litigation.] See Ohio Rule 1.13 cmt. :
When one of the constituents of an organizational client communicates with the organization's lawyer in that person's organizational capacity, the lawyer must keep the communications confidential as to persons other than the organizational client as required by Rule 1.6.
Unless the lawyer for the entity is also representing the employee (which raises separate problems, such as conflict of interests), the privilege is that of the client -- the entity -- and is the entity's to waive if it so chooses. Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Franklin) (no waiver by corporation in allowing high-ranking employee to act as agent of company in relations with its legal counsel). See Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 4.2(A)(2), at 100 (1992). See also sections 1.13:200 and 1.13:500.
Where the client is a governmental entity, the attorney-client privilege applies to communications between a government official and the government's counsel in much the same way as it would were the government client a private individual. This is reflected in the statute requiring disclosure of public records and the case law thereunder. See, e.g., State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824 N.E.2d 990 (discussed in more detail below); State ex rel. Thomas v. Ohio State Univ. 71 Ohio St.3d 245, 251, 643 N.E.2d 126, 131 (1994) (per curiam) ("the attorney-client privilege applies to documents containing communications between members of the public entity represented about the legal advice given"). See also 1 Restatement (Third) of the Law Governing Lawyers § 74 (2000).
ORC 149.43, the Ohio Public Records Act, provides that "public records" are to be made available to any person at all reasonable times during regular business hours. The term "public record," however, does not include some 25 different categories of documents (see ORC 149.43(A)(1)(a)-(y)), including records the release of which is prohibited under state or federal law (ORC 149.43(A)(1)(v)). A rather comprehensive review of this subject is found in the Court's unanimous opinion in State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824 N.E.2d 990.
Leslie addressed a panoply of issues regarding the governmental attorney-client privilege and came down decisively on the side that government agencies and officials do indeed have the protections of the privilege. The wrinkle in Leslie was ORC 109.02, which provides that no state agencies, officers, etc., "shall employ or be represented by, . . . counsel or attorneys at law" other than lawyers in the state Attorney General's office. While for the most part eliding the "employ" language, the Court concluded, properly we think, that in-house, non-Attorney General's Office, government lawyers and their state organization clients are entitled to the protection of the privilege. See id. at ¶¶ 31-42. As the Court noted, Leslie's interpretation of the statute "might lead to the absurd result that his own employment as an attorney with the Department of Development was prohibited." Id. at ¶ 42.
Another interesting aspect of the Leslie case should be noted. One of Leslie's arguments against the existence of the privilege with respect to the documents he had attached to his court filings was that ORC 2317.02(A) does not extend the privilege to government entities. The Court brushed this aside, saying that even if 2317.02(A) were inapplicable, the common-law privilege applied to the documents in question, precluding their unauthorized dissemination. The ORC 2317.02(A) issue is an important one, however, for two reasons. First, it would appear from a literal reading of the definition of "client" in ORC 2317.021 ("person, firm, partnership, corporation, or other association") that, while a government official would qualify as a "person," government entities are not included (subject to the rather unpersuasive argument that "other association" can be read expansively to encompass government agency or office). Second, query whether the Court's invocation of the common-law privilege (also an evidentiary privilege preventing compelled testimony in situations in which 2317.02(A) is inapplicable), reaches the voluntary dissemination of confidential documents at issue in the Leslie case. While Huffstutler, cited by the Court on the dissemination issue, does indeed say that the privilege protects against such dissemination, commentary rather persuasively suggests that the principle applicable in such cases is the ethics prohibition against disclosure of confidential information, rather than the privilege (common-law or statutory), which guards against compelled testimony or discovery of attorney-client communication. E.g., 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Federal Rules of Evidence § 5472 (1986 & Supp. 2007) (at 89-92 and 36-37, respectively); see 1 Restatement (Third) of the Law Governing Laywers § 86 (2000). This distinction was explained in X Corp. v. Doe, 805 F. Supp. 1298 (E.D. Va. 1992), which, like Leslie and Huffstutler, was
not a case involving compelled disclosures. No one seeks to compel Doe to disclose privileged material against X Corp.'s invocation of the attorney-client privilege. Rather, this is a case of voluntary disclosure; Doe [as in Lelsie and Huffstutler] voluntarily has disclosed or wishes to disclose a broad range of information X Corp. believes should be treated confidentially. Thus, applicable here is the broader duty of confidentiality . . . .
Id. at 1310 (bracketed material added).
Government attorneys' confidential communications with government employees: Attorney notes of conversations between Cleveland Law Department attorneys and city employees named in a suit, as well as those employees' requests to the law department for representation, were privileged under the state law prohibiting disclosure of communications between attorneys and their government clients and prospective clients. Disclosure of the records sought is not required under the Ohio Public Records Act (ORC 149.43) because subsection (A)(1)(p) (now subsection (A)(1)(v)) of that act excepts from the definition of "public records" those "records the release of which is prohibited by state . . . law." The attorney-client privilege is such a law. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam). The Court reached the same conclusion with respect to communications between a lawyer in the Ohio State University Office of Legal Affairs and nonlawyer OSU employees in State ex rel. Thomas v. Ohio State Univ., 71 Ohio St.3d 245, 249, 643 N.E.2d 126, 130 (1994) (per curiam) ("Records of communications between attorneys and their state-government clients pertaining to the attorney's legal advice are excepted from disclosure under [ORC 149.43(A)(1)(p), now ORC 149.43(A)(1)(v)], since the release of these records is prohibited by state law."). Accord State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535, 542, 721 N.E.2d 1044, 1050 (2000) (per curiam) ("The attorney-client privilege, which covers records of communications between attorneys and their government clients pertaining to the attorneys' legal advice, is a state law prohibiting release of these records."). Court of appeals decisions to the same effect include State ex rel. Benesch, Friedlander, Coplan & Arnoff v. City of Rossford, 140 Ohio App.3d 149, 746 N.E.2d 1139 (Wood 2000) (drafts of bond documents prepared by attorneys sent to governmental client for review but not intended for dissemination to public; held that such preliminary documents -- to extent they contained confidential information not included in final version of documents that would be disseminated to public -- are not "public records" subject to disclosure under ORC 149.43; such preliminary material protected by attorney-client privilege); Woodman v. City of Lakewood, 44 Ohio App.3d 118, 541 N.E.2d 1084 (Cuyahoga 1988), (requiring attorney to disclose legal memorandum prepared for government client would violate common-law attorney-client privilege).
Another opinion dealing with the privilege exception in the Ohio Public Records Act is State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999). At issue in the case were time and financial records kept by the Ohio Public Defender's office in connection with the appellate and habeas corpus proceedings on behalf of a capital-murder defendant who had since been executed. The court of appeals noted that fees and the contract therefor are not within the privilege (citing In re Martin, 141 Ohio St. 87, 105, 47 N.E.2d 388, 396 (1943)); nor is time spent on a matter. To the extent the records reflected more than time and fees and included confidential information (which information does not lose its protection with the death of the client), the court of appeals would review them in camera, provided the Defender's Office specifically identified such documents. 134 Ohio App.3d at 424-25, 731 N.E.2d at 252.
City charter open-meetings provision: The Oxford, Ohio City Charter provided that all council meetings be open to the public. The city attorney was present at one such meeting; the city argued that in such circumstance the Court should recognize the statutory and common-law attorney-client privilege as exceptions to the charter, just as ORC 121.22(G)(3) and (5) recognize exceptions to the state's sunshine law for certain attorney-client privilege matters. The Ohio Supreme Court held otherwise, since pursuant to Ohio's Home Rule Amendment to the Constitution (Art. XVIII, § 3) a municipal charter controls over conflicting state law in matters of local self-government. State ex rel. Fenley v. Kyger, 72 Ohio St.3d 164, 166, 648 N.E.2d 493, 494-95 (1995) (per curiam) ("the city charter requirement that council meetings 'shall be open to the public' prohibits any meeting, regardless of its purpose, from being private."). But cf. TBC Westlake, Inc. v. Hamilton County Bd. of Revision, 81 Ohio St.3d 58, 689 N.E.2d 32 (1998) (Sunshine Law does not apply to quasi-adjudicative BTA hearing; also, Ohio Public Records Act exception for records the release of which is prohibited by state or federal law includes attorney/hearing examiner's report in accordance with common law "judicial mental process" privilege, as to which see United States v. Morgan, 313 U.S. 409, 421-22 (1941)).
No privilege between co-clients in subsequent adverse proceedings: As stated in Ohio Rule 1.7 cmt. ,
the prevailing rule is that, as between commonly represented clients [i.e., co-clients], the privilege does not attach. Hence, it must be assumed that if litigation does later occur between the clients, the privilege will not protect communications made on the subject of the joint representation, while it is in effect, and the clients should be so advised.
This view is reflected in Ohio case law. Thus, when two clients sought the assistance of an attorney jointly, information provided by each client would not be privileged in a subsequent dispute between them, although the privilege remained in effect as to parties other than the joint client. There was no privilege between the clients because, at the time each of them provided information to the lawyer, there was no intent to withhold that information from the other client. Emley v. Selepchak, 76 Ohio App. 257, 63 N.E.2d 919 (Medina 1945).
In another case the insurer was obligated to defend any damage action brought against the insured by the terms of the liability policy between the parties. In such a damage action against the insured, the insured had been informed by the insurer's counsel that he had the right to obtain personal counsel to represent him to protect against liability in excess of the policy limits, but the insured chose not to do so and relied upon the insurer's counsel to represent him. In furtherance of such attorney-client relationship, the insured had several conferences with insurer's counsel, attended a deposition with the insurer's counsel, and reviewed the scene of the accident with the insurer's counsel. In a subsequent action brought by the insured against the insurer, the court held that in the prior action both the insurer and the insured had been clients of counsel retained by the insurer, and, given the mutuality of interest, both were equally entitled to any and all information relating to the matter. Therefore the attorney-client privilege was not applicable to a letter that counsel for the insurer and the insured had sent to the insurer, and the trial court erred in denying the insured's motions for production of the letter. Netzley v. Nationwide Mut. Ins. Co., 34 Ohio App.2d 65, 296 N.E.2d 550 (Montgomery 1971) (citing the Emley case with approval).
Note that the underlying rationale of the Netzley case -- that both the insured and the insurer are the clients in such circumstances -- is no longer the law. See Ohio Rule 1.8(f)(4) & cmts.  & [12A], which make clear that in Ohio the client is the insured. See as well the discussion at sections 1.7:410 and 1.8:720. Despite this change, the result in Netzley in all likelihood would be the same, since both insured and insurer had a common interest in the underlying litigation. See section 1.6:490 below.
Emley and Netzley, discussed above in section 1.6:480, were co-client or common-representation cases — that is, one lawyer jointly represented two or more clients in a matter. In a common-interest arrangement, the clients are separately represented but have a common interest or goal in one or more aspects of the matter and agree to exchange information with respect thereto. Compare 1 Restatement (Third) of the Law Governing Lawyers § 75 (2000) (co-clients), with id. § 76 (common-interest arrangements). Disclosure of otherwise privileged information to less than all of those having a common interest remains privileged as to the others in the arrangement, as well as to third parties. In the co-client situation, it is presumed that all information will be disclosed to all co-clients, and thus there is no privilege vis-a-vis the co-clients. Compare id. § 75 cmt. d, with id. § 76 cmt. e. In both the co-client context and a common-interest arrangement, there is no privilege with respect to such information in subsequent adverse proceedings between the clients, unless they have agreed otherwise. Id. §§ 75(2), 76(2).
As stated in sections 1.6:410 and 1.18:200, the protections of, and duties arising from, the attorney-client privilege can arise with respect to communications with a lawyer as early as the prospective-client stage. This obligation is a continuing one, whether or not the lawyer is engaged and, if engaged, continues even after the termination of the attorney's employment. Ohio Rules 1.6 cmt.  & 1.9(c); Kala v. Aluminum Smelting & Ref. Co., 81 Ohio St.3d 1, 688 N.E.2d 258 (1998). (Protection of the confidences of a former client is discussed in section 1.9:400.)
Indeed, the attorney-client privilege does not expire with the death of the client. Taylor v. Sheldon, 172 Ohio St. 118, 173 N.E.2d 892 (1961). Accord State ex rel. Beacon Journal Publ'g Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999). In the words of the Restatement, the privilege may be invoked "at any time during or after termination of the relationship between client or prospective client and lawyer." 1 Restatement (Third) of the Law Governing Lawyers § 77 (2000).
- Primary Ohio References: Ohio Rule 1.6(a); ORC 2317.02(A), 2151.421
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Gianelli & Snyder, Baldwin's Ohio Practice, Evidence § 501.13; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 9.5(A)
- Commentary: ABA/BNA §§ 55:401; ALI-LGL §§ 78-80; Wolfram § 6.4
The Ohio rule on waiver of privilege is unique. If the testimonial privilege of ORC 2317.02(A) (barring testimony by the attorney as to direct attorney-client communications) is applicable, then it may be waived only in the manner stated in the statute -- by express consent of the client (or, if the client is deceased, by the surviving spouse or executor or administrator), by the voluntary testimony of the client on the same subject, or by deemed waiver under ORC 2151.421(A)(3) with respect to certain communications giving rise to knowledge or suspicion of child abuse or neglect. The common-law waiver by disclosure to a third party is not recognized in the statute. See sections 1.6:430 and 1.6:520. (The addition to ORC 2317.02(A), effective June 15, 2006, is not a waiver provision; it excludes certain attorney-client communications from the protection of the statutory privilege and is discussed infra at section 1.6:610, "Exceptions for Disputes Concerning Decedent's Disposition of Property.")
If the statute is inapplicable, common-law rules of privilege control, and the privilege may be waived by consent of the client, by the client's voluntary testimony, or, by the client's subsequent disclosure to a third party (who is not an agent of the attorney).
Ohio Rule 1.6(a) recognizes client waiver in the form of informed consent to disclosure with respect to "information relating to the representation," which includes information protected by the attorney-client privilege. Id. See section 1.6:310.
Only client may waive privilege: Since the privilege belongs to the client, Allen County Bar Ass'n v. Williams, 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973, at ¶ 9, the privilege may be waived only by the client. Duttenhofer v. State, 34 Ohio St. 91 (1877); see Carver v. Deerfield Township, 139 Ohio App.3d 64, 742 N.E.2d 1182 (Portage 2000) (testimony of individual trustee as to what occurred at meeting of township board of trustees and its attorney does not waive privilege belonging to client, the board of trustees as a whole); State v. Shipley, 94 Ohio App.3d 771, 641 N.E.2d 822 (Licking 1994) (privileged communications remain privileged when disclosed by any person who was not entitled or did not have the authority to waive the privilege). See also In re Lott, 424 F.3d 446 (6th Cir. 2005) ("The privilege remains the client's, and the client must take some affirmative act to waive it." Id. at 454).
It should be noted, however, that ORC 2317.02(A) specifically provides that "the attorney may testify" as to otherwise privileged communications "if the client is deceased, by the express consent of the surviving spouse or the executor or administrator of the estate of the deceased client." The "surviving spouse" waiver was at issue in State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803 N.E.2d 777. In Doe, the Court held that when the surviving spouse expressly waives the privilege of a deceased spouse in accordance with the statute, the attorney for the deceased spouse must obey the trial court's order to answer grand jury interrogatories. In so holding, the Supreme Court rejected the attorney's argument that the statutory language—"the attorney may testify"—is permissive and allows the attorney to testify or not in his or her discretion:
R.C. 2317.02(A) provides that an attorney may testify by the express consent of the surviving spouse as opposed to mandating that an attorney shall testify by the express consent of the surviving spouse, in deference to the trial court's well-established role as the arbiter of the admission of evidence.
Id. at ¶ 14 (emphasis by the Court). The Court further rejected the attorney's argument that she was "ethically barred from answering the grand jury's interrogatories." Id. at ¶ 17. Quoting former OH EC 4-2 and DR 4-101(C)(2), the Supreme Court emphasized that the obligation to preserve client confidences and secrets did not preclude the lawyer from revealing such information "'when permitted under Disciplinary Rules or required by law or court order.'" Id. at ¶ 21 (emphasis by the Court). This disclosure exception is recognized in the Rules at Ohio Rule 1.6(b)(6) ("to comply with other law or a court order"). See section 1.6:370.
As noted above, ORC 2317.02(A) also provides for “deemed waiver” under 2151.421, dealing with reporting of known or suspected child abuse. Pursuant to this provision, an attorney must report any known or reasonably suspected abuse, but where the information comes from a confidential communication by the client, it need not be reported unless all of the following apply, in which case the client is deemed to have waived the privilege and the attorney is obligated to report: (1) the client is either under eighteen or, if mentally or physically impaired, under the age of twenty-one; (2) the confidential communication discloses the fact or threat of injury from child abuse or neglect; and (3) the abuse does not arise out of the client’s attempt to have an abortion without parental notification. ORC 2151.421(A)(3). Compare, in contrast to this child-abuse statute, the legislation requiring that attorneys report adult abuse of impaired adults age sixty and over, ORC 5101.61, which does not speak to privilege/waiver issues.
Inadvertent disclosure: Although it is settled law that the privilege is the client's and that any waiver of the privilege must be voluntary (see cases cited above), one must also deal with the cases addressing the matter of inadvertent disclosure of privileged information by a lawyer and the consequences thereof. While there is no easy resolution of this issue, the following provides some guidance.
There are three lines of authority -- those cases holding that such disclosure results in waiver of the privilege; those holding that it does not; and those holding that the issue must be decided on a case-by-case basis, using a balancing test that takes into account five factors: (1) the reasonableness of the precautions taken by the producing party, (2) the time taken to rectify the error, (3) the scope and nature of the discovery proceedings, (4) the extent of the disclosure in relation to other discovery in the case, and (5) the overriding issue of fundamental fairness. (The factors are variously described in the cases; this list is that given in the only Ohio state case addressing the issue, Miles-McClellan, discussed below.) In a case described by the court as "a matter of first impression in the state of Ohio," the Tenth District Court of Appeals opted for the middle ground and ruled (somewhat presumptuously, for an intermediate appellate court) that
the law in Ohio shall be that the trial court, in addressing inadvertent disclosure of allegedly privileged documents in the course of discovery, must hold a hearing considering the above-outlined factors before determining to what extent, if any, waiver has occurred with respect to the contested materials.
Miles-McClellan Constr. Co. v. Bd. of Educ., 2006 Ohio 3439, 2006 Ohio App. LEXIS 3366 (Franklin), at paras. 12, 16 (lawyers for Board of Education, as authorized agent of client for purposes of litigation, voluntarily but unintentionally produced allegedly privileged documents in response to discovery request; reversing trial court finding that any voluntary disclosure results in waiver and remanding for hearing on issue).
At least two Ohio federal decisions have applied the middle-ground balancing test -- one in finding waiver, the other no waiver, on the facts presented. In Evenflo Co. v. Hantec Agents Ltd., No. 3-:05- CV-346, 2006 U.S. Dist. LEXIS 74684 (S.D. Ohio 2006), the court, citing the Miles-McClellan case among others, found that each of the factors favored a finding of waiver and overruled the sender's motion to compel return of the documents. At issue were a significant number of privileged documents out of over 10,000 produced in response to plaintiff's document request. A particularly telling fact in the case, we believe, was that "[r]ather than attempting to identify the allegedly privileged documents itself, Hantec [the sender] asked Evenflo [the recipient] to identify and return the privileged documents, which of course, Evenflo should not and could not do." Id. at *18. In its summary of conclusions with respect to the balancing test, the court held as follows:
All five factors weigh in favor of a determination that Hantec waived privilege on the documents to which privilege applies. Hantec did not take reasonable precautions to protect the Privileged Documents. The consequences of the disclosure of privileged documents in general and the number disclosed in this case are both significant. No privilege log was provided at the time of disclosure. The Privileged Documents were disclosed to the opposing party and were complete documents. The precautions taken by Hantec to avoid disclosure and the measures taken to mitigate damages were not reasonable. Finally, the contents of some of the Privileged Documents may be relevant to the heart of the dispute between the parties and Hantec's carelessness cannot be condoned.
Id. at *19-20. In the no-waiver case, Hawkins v. Anheuser-Busch, Inc., No. 2:05- CV-688, 2006 U.S. Dist. LEXIS 40461 (S.D. Ohio June 19, 2006), the court was presented with a situation in which, in an exchange of correspondence regarding the signing of medical releases by the plaintiff, a document protected by the work-product privilege was inadvertently attached by an administrative assistant employed by counsel for the defendant to a blank medical release. Judge Kemp found that the leading decision on the issue was Lois Sportswear, USA v. Levi Strauss & Co., 104 F.R.D. 103 (S.D.N.Y. 1985), which held, in Judge Kemp's words, that
in order to decide whether the production waived the attorney-client or work product privileges, it should inquire, first, into the reasonableness of measures taken by the producing party to prevent privileged documents from being produced. The Court should also look at the effort taken by the party after the disclosure was discovered to correct the error, to the scope of the disclosure made, to the extent of other discovery taken in the case, and to balance fundamental concepts of fairness and upholding claims of privilege against the degree to which the party disclosing the document had been negligent.
2006 U.S. Dist. LEXIS 40461, at *4 (emphasis added). In applying this test, the Hawkins court found that the "privileged document was attached to other unrelated documents purely as a result of a clerical error which could not have been foreseen by the attorney who sent the correspondence. The Court . . . concludes that, under these facts, reasonable precautions were taken to avoid the disclosure of privileged documents." Id. at *7. The court also found that Anheuser-Busch "immediately . . . made every effort to retrieve the document" - it promptly requested return of the document, attempted to resolve the matter extrajudicially, and moved for a protective order after exhausting extrajudical efforts to resolve the issue. Noting that the scope of the disclosure was narrow - a single document - "the Court concludes that in fairness the document ought to be returned, and the information in it not used in this litigation. Consequently, the Court will grant the motion for protective order and direct return of the document." Id. at *8. Judge Kemp also determined that it made no difference for purposes of resolution of the inadvertent disclosure issue whether the attorney-client or work-product privilege was involved -- "[a]n inadvertent disclosure is either a waiver or it is not . . . ." Id. at *7. See also Van Hull v. Marriott Courtyard, 63 F. Supp.2d 840 (N.D. Ohio 1999) (rejecting receiving party's demand that party inadvertently sending privileged notes produce unredacted copy of those notes and all other privileged documents on same subject matter); Transp. Equip. Sales Corp. v. BMY Wheeled Vehicles, 930 F. Supp. 1187 (N.D. Ohio 1996) (receiving lawyer ordered to return inadvertently disclosed document without using or disseminating it; note that court relies on now-withdrawn ABA Formal Op. 368 (1992)).
Moore notes that proposed Federal Rule of Evidence 502, if adopted, would in effect codify the balancing-test approach by providing that there is no waiver if the privilege holder took reasonable precautions to prevent disclosure and, once having knowledge of it, takes prompt measures to rectify the error. 30 Judith A. McMorrow & Daniel R. Coquillette, Moore's Federal Practice § 809.03 (3d ed. 2007). See also Fed R Civ P 26(b)(5)(B), as amended in 2006 (if privileged or work-product information produced in discovery and recipient so notified, "a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved."). OH R Civ P 26 does not contain a comparable provision.
The obligation of a lawyer in receipt of inadvertently disclosed documents is now addressed in Ohio Rule 4.4(b). Although that Rule does not expressly deal with the ramifications of such disclosure when the disclosure involves privileged or otherwise protected documents, the fact is that the issue does not often arise unless the documents contain protected information. Thus, while there may be some question whether these privilege/work-product cases retain viability under the 4.4(b) analysis, we suspect that they do. See ABA, Annotated Model Rules of Professional Conduct 420-21 (6th ed. 2007) (commentary) and further discussion of the issue at section 4.4:300.
Waiver where client is represented by more than one lawyer: A noteworthy statutory waiver case decided by the Eighth District Court of Appeals is Lightbody v. Rust, 137 Ohio App.3d 658, 739 N.E.2d 901 (Cuyahoga 2000). In Lightbody, a co-counsel fee-dispute case, both Lightbody and Rust had represented the client, Cooper. (Rust's firm, Woodling, apparently still did.) The trial court had granted Rust's motion to compel and ordered Lightbody to answer deposition questions that Lightbody contended called for privileged information. With his motion, Rust had submitted a sworn declaration of Cooper in which Cooper admitted that he disclosed privileged information to the two lawyers, but that the communications with Lightbody were "'not separate and apart from Rust but with him as part of Rust's legal support group.'" 137 Ohio App.3d at 661-62, 739 N.E.2d at 843. Lightbody argued that the declaration did not contain a waiver of the testimonial privilege set forth in ORC 2317.02, and therefore he was precluded from answering the deposition questions. The court of appeals agreed. Citing a 1921 opinion ( Haley v. Dempsey, 14 Ohio App. 326, 328-29 (Hamilton 1921)) as authority, the court stated that
where the client has two attorneys who are partners [in the case at bar, the lawyers had been co-counsel, not partners], an express waiver of the testimonial privilege contained in R.C. 2317.02(A) as to one attorney does not result in a renunciation of all of the client's rights regarding the communications and authorization to the second attorney to testify with respect to those communications.
137 Ohio App.3d at 663, 739 N.E.2d at 844 (bracketed material added). While one might wonder whether Cooper's willingness to provide Rust with the declaration indicated a willingness to waive the privilege as to Lightbody, the Eighth District Court of Appeals saw it differently:
Nothing in the record shows that Cooper expressly waived the testimonial privilege as it applies to Lightbody. Moreover, . . . . nothing in the record shows that Cooper consented to Woodling's attempt to elicit such confidential information for its own "advantage" after full disclosure to Cooper that these now-revealed confidences and secrets either may or will become a part of the public record. See DR 4-101(B)(3). Without an express waiver from Cooper, after full disclosure, as to all parties in this action, Lightbody and Woodling must preserve his confidences and secrets . . . .
The order effectively allowed Woodling, for the purpose of procuring discovery for its own advantage and without evidence of full disclosure to Cooper, to waive both Cooper's testimonial privilege and each attorney's ethical obligation to safeguard his confidences and secrets. As such, the disposition of the motion constitutes an abuse of discretion . . . .
Id. at 664-65, 739 N.E.2d at 845 (emphasis by the court). Judge Rocco, dissenting on this issue, argued that "confidentiality is not breached by disclosure among the client's co-counsel," provided that protective orders are put in place to guard against disclosure to others. Id. at 666, 739 N.E.2d at 846.
As stated in Ohio Rule 1.6(a), a client can waive the protection against attorney disclosure of information relating to the representation, including privileged information, by giving "informed consent" to the disclosure. "[E]xpress consent by the client" also allows the attorney to testify under the evidentiary privilege statute, ORC 2317.02(A). Other instances of waiver of the privilege may arise pursuant to statute or common-law precedent, as discussed below.
Waiver by surviving spouse of deceased client: ORC 2317.02(A) provides that a surviving spouse can expressly consent to testimony by the deceased client's lawyer concerning privileged attorney-client communications. See State v. Doe, 101 Ohio St.3d 170, 2004 Ohio 705, 803 N.E.2d 777, discussed in section 1.6:500 above.
Waiver by guardian: Where an incompetent is a party, the duly appointed guardian may waive the statutory privilege on behalf of his ward and allow the former attorney for the incompetent to testify as to his client's incompetency. Yancy v. Erman, 45 Ohio Op. 208, 99 N.E.2d 524 (C.P. Cuyahoga 1951). [Query whether this holding survives McDermott, since there is no waiver-by-guardian exception in ORC 2317.02(A). And cf. Swetland v. Miles, 101 Ohio St. 501, 130 N.E. 22 (1920) (finding no exception to statutory privilege in will contest, even though personal representative of the estate of the deceased client consented to attorney's testifying). (The Swetland rule was later changed by the legislature. See section 1.6:610.)] Cf. Weierman v. Mardis, 101 Ohio App.3d 774, 656 N.E.2d 734 (Hamilton 1994), discussed at section 1.6:640.
Corporate waiver of privilege: When the client is a corporation, the attorney-client privilege can be waived only by a decision of the management of the corporation. Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Franklin) ("Current corporate executives and managers, if endowed with appropriate authority by their employer, may on behalf of the corporation either assert or waive the attorney-client privilege." Id. at para. 10.); Stuffleben v. Cowden, 2003 Ohio 6334, 2003 Ohio App. LEXIS 5676 (Cuyahoga) (purported waiver of corporations' privilege by majority shareholder and chief executive officer of closely-held corporations ineffective where shareholder/officer sought to waive privilege, not on behalf of corporations, but on his own behalf, in malpractice litigation against corporations' attorneys); State v. Today's Bookstore, Inc., 86 Ohio App.3d 810, 621 N.E.2d 1283 (Montgomery 1993). Cf. In re Estate of Irish, No. 50735, 1986 Ohio App. LEXIS 7037 (Cuyahoga June 5, 1986) (upholding privilege of corporate executor; claimant sought privileged information from executor's employee during employee's deposition; when claimant suggested that executor could waive the privilege, executor's counsel stated that executor did not choose to waive privilege).
While there appears to be no Ohio case law dealing with the question of who has the authority to waive the privilege on behalf of the corporation other than the statements in OhioHealth and Today's Bookstore that it is vested in those who manage the affairs of or run the corporation (typically, the officers and directors, see Brian D. Forrow, The Corporate Law Department: Counsel to the Entity, 34 Bus. Law. 1797, 1799 (1979)), there are other, comparable, formulations provided by the commentators. Thus, Guttenberg and Snyder talk in terms of those who are duly authorized to "speak for the corporation," with respect to assertion of the privilege and waiver thereof. See Jack A. Guttenberg & Lloyd B. Snyder, The Law of Professional Responsibility in Ohio § 4.2(A) (1992 & Supp. 1998) (see, in particular, id. at 96, 100 & n.42, & Supp. p. 21). While there will be instances in which corporate employees are duly authorized to provide to the corporation's lawyers information that will be protected by the corporation's attorney-client privilege (see, e.g., Upjohn Co. v. United States, 449 U.S. 383 (1981)), the power to waive the privilege on behalf of the corporate client will typically come from an officer or other manager with authority to do so. See generally 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 9.8, at 9-34 (3d ed. Supp. 2004-2); 1 Restatement (Third) of the Law Governing Lawyers § 73 cmt. j, at 563 (2000) ("The privilege for organizational clients can be asserted and waived only by a responsible person acting for the organization for this purpose."). For a provocative and critical look at the waiver and other corporate privilege issues, see 24 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure (Evidence) §§ 5476, 5484, 5487, 5496, 5507 (1986 & Supp. 2007). Authority dealing with the corporate waiver issue is collected in § 5476, at 177 and Supp. 2006, at 67, 77-78; § 5487, at 409-10 and Supp. 2007, at 68, 78-79; § 5487, at 409-10 and Supp. 2007, at 186; § 5496, at 478-79 and Supp. 2007, at 237-38; and § 5507, at 577 and Supp. 2007, at 345-48.
Waiver by failure to object to the introduction of privileged testimony: Failure to raise a timely objection to the use by the prosecutor of testimony of a defense expert served to waive the privilege. State v. Richey, 64 Ohio St.3d 353, 595 N.E.2d 915 (1992) (dictum; noting that, although privilege did not apply because expert disclosed no confidential information, defense waived any protection privilege might have offered by not objecting to testimony presented).
On the other hand, the exemption for privileged records in the Ohio Public Records Act (ORC 149.43(A)(1)(v)) [and presumably under privilege law other than that to which the Records Act is applicable, although we found no Ohio case law so stating] is not an affirmative defense that must be raised in an answer to avoid waiver. State ex rel. Nix v. Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam) (the exemption remains fully applicable absent evidence that the public office having custody of the records had disclosed them to the public; no such disclosure here). See also Indiana Ins. Co. v. Hardgrove, No. 98 AP-910, 1999 Ohio App. LEXIS 1699 (Franklin April 15, 1999), where the trial court had held that a company's delay in filing a motion for a protective order covering privileged communications between lawyer and client, until after the trial court threatened sanctions for failing to comply with opposing counsel's discovery request, acted as a waiver of the privilege. Reversing, the Tenth District Court of Appeals found the assertion of the privilege timely and proper, and stated that ORC 2317.02(A) provided the exclusive means for waiving the privilege. Inasmuch as the client's conduct did not come within any of the waiver provisions set forth in the statute, the trial court's finding of waiver was error. [Query whether this case, involving a request for production of documents directed to the client and a motion for protective order in connection therewith, rather than compelled testimony by the attorney, raised a question of waiver under the common-law privilege, as opposed to the statutory privilege.] With respect to invocation of the privilege, see also section 1.6:660.
Client's subsequent disclosure to third parties: Until the decision in Jackson v. Greger, discussed in detail in section 1.6:530 at "Implied waiver of privilege by client," by far the most important Ohio case dealing with the issue of waiver of the privilege was State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995). McDermott also serves to underscore the unique nature of Ohio's privilege law, which can produce two different results, depending on whether the statutory or common-law privilege is applicable.
In McDermott, attorney Lawrence represented McDermott, who was charged with murder. At a post-indictment investigatory grand jury hearing, Lawrence's brother testified that McDermott told him of a conversation McDermott had with Lawrence in which McDermott admitted the murder. The attorney was then ordered to testify on three separate occasions on the theory that McDermott had waived the privilege by subsequent disclosure to a nonagent third party of confidential communications with his attorney. The third instance arose during McDermott's trial, where the prosecution called Lawrence to testify. Upon his refusal, based on the privilege, he was held in contempt and jailed for two days. The court of appeals reversed, holding that the privileged communication had not been waived by McDermott's disclosure; the court relied on Swetland v. Miles, 101 Ohio St. 501, 130 N.E. 22 (1920), and, in distinguishing State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754 (1987), held that Post necessarily applies only to those communications privileged at common law, not those covered by the statutory privilege.
The Supreme Court affirmed. In doing so, the Court found its holding in Post to be overbroad and instead followed the Swetland case, "where this court held that the Ohio statute on privileged communications [now ORC 2317.02] evinced the sole criteria for waiving the privilege: (1) the client expressly consents, or (2) the client voluntarily testifies on the same subject." 72 Ohio St.3d at 572, 651 N.E.2d at 987 (1995). In Post, "[t]his court found the client's discussion with the polygraph operator [an agent of the attorney] privileged but also found that privilege waived when the client revealed the content of the privileged communication to a third party. At common law, the attorney-client privilege could be waived either expressly or by conduct implying waiver." Id. at 573, 651 N.E.2d at 988. The McDermott Court concluded that the statutory privilege was not applicable in Post because the statute deals only with communications directly between the client and attorney. The Court did approve the "judicially created attorney-client privilege" for communications with the attorney's agent and found that Post had "properly decided how that common-law attorney-client privilege could be waived [by disclosure to a third party]. The circumstances of waiver recognized in that case have no relationship to communications that fall squarely within the statutory privilege based on direct communications between attorneys and clients." Id. at 574, 651 N.E.2d at 988.
The penultimate paragraph of the Court's opinion in McDermott states as follows:
As we decline to add a judicially created waiver to the statutorily created privilege, we hold that R.C. 2317.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived. Lawrence's act of refusing to testify was not contemptuous because McDermott had not waived the attorney-client privilege -- he neither expressly consented to Lawrence's testifying nor did he voluntarily testify on the same subject.
In sum, if the attorney-client privilege arises under ORC 2317.02(A), that statute provides the only bases by which the privilege may be waived. Accord Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487 (syllabus one); Allen County Bar Ass'n v. Williams, 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973. Since McDermott involved the question of compelled attorney testimony concerning direct communication between attorney and client, the statutory privilege was applicable. Because the statute provided no exception for subsequent disclosure by the client to third parties, there was no waiver of the privilege. The same conduct, however, does waive the common-law privilege, which Ohio law also recognizes when the statutory privilege does not apply.
Disclosure must be voluntary: A confidential memorandum from the city's chief prosecutor to the city's law department was leaked to the media. The court held that the memo was protected by the attorney-client privilege, despite the disclosure, because (1) the memo was a communication between attorney and client with advice regarding conduct of litigation on the behalf of the client and (2) there was no evidence that the city voluntarily relinquished the memo; therefore, the city never waived the privilege. State v. Today's Bookstore, Inc., 86 Ohio App.3d 810, 621 N.E.2d 1283 (Montgomery 1993). [Under the Supreme Court's later decision in McDermott, a subsequent disclosure, whether voluntary or not, would not waive the statutory privilege. The Bookstore opinion correctly states the law with respect to the common-law privilege and waiver thereof.] See also In re Grand Jury Subpoenas Issued to Alice Lynd, 2005 Ohio 4607, 2005 Ohio App. LEXIS 4170 (Scioto) (upholding contempt finding against lawyer for refusal to testify; affirmance based in part on fact that "the trial court reasonably could have concluded that [the client] inculpated himself to help [other clients of Lynd] and knew that Lynd would disclose this information to third parties." Id. at para. 18.) (bracketed material added); In re Lott, 424 F.3d 446 (6th Cir. 2005) (reversing, in habeas proceeding, trial court's holding that assertion of innocence waived privilege; such a waiver is "a legal fiction if 'waiver' means a voluntary act." Id. at 452.); In re Dayco Corp. Derivative Sec. Litig., 102 F.R.D. 468 (S.D. Ohio 1984) (no waiver of privilege by virtue of unauthorized publication of confidential material by newspaper).
Partial disclosure: A partial disclosure by the client of privileged communications has been held to render discoverable all opinion letters on the subject written by counsel to the client. Thus, in Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 599 N.E.2d 699 (Wood 1991) (per curiam), in a coverage dispute between insured and insurer, the court held that the insurer waived any common-law attorney-client privilege when it reported part of the contents of its counsel's opinion to the insured in a letter, thereby making the entire communication by the insurer's counsel discoverable. The insurer was compelled to release all letters of opinion from its counsel to the insured concerning insurance coverage provided to the insured. Accord Hollingsworth v. Time Warner Cable, 157 Ohio App.3d 539, 2004 Ohio 3130, 812 N.E.2d 976 (relying on Mid-American; finding the disclosure of communication in question voluntary, thereby waiving privilege as to all communications on same subject matter). Without any discussion of the issue, the Hollingsworth court rejected defendant's argument that its disclosure was "inadvertent," not voluntary. On the facts, the inadvertence argument seems disingenuous at best. Time Warner first had produced and used the document on its own behalf at an administrative hearing and then produced it again in discovery. One is hard pressed to find this conduct inadvertent.
Insured driver's disclosure to opposing party: Where a written statement by the insured of his account of facts surrounding a car accident was given to the insurer's agent and transmitted to the insurer's attorney for use in prospective litigation, the document was privileged as a communication between client and attorney. But subsequent disclosure by the insured to third persons, including counsel for the opposing party in the original action, of a different version of the facts contained in the first statement, and insured's voluntary testimony as to the matters recorded in the statement in a subsequent declaratory judgment action brought by the insurer against the insured, destroyed the insured's privilege. Thus it was not error for the trial court to have allowed the insurer to introduce the insured's written statement in evidence. Travelers Indem. Co. v. Cochrane, 155 Ohio St. 305, 98 N.E.2d 840 (1951) (syllabus four). [Travelers is suspect on a number of points. First, it seems to treat the case as one involving the statutory privilege, even though there was no attorney testimony involved; second, query whether it is a privilege case at all, since the statement at issue was being voluntarily put in evidence. Third, even if privilege principles were applicable, the case seems inconsistent with the general rule that the communication itself is privileged, even though the facts underlying the communication are not.]
Subsequent disclosure of privileged information by one not authorized to do so does not waive the privilege: After a party communicated involvement in a fatal accident to his attorney for the purpose of receiving professional advice, the attorney disclosed this information to the police. The trial court erred in admitting the attorney's statements into evidence because the information was privileged, only the client can waive the privilege, and the driver had neither waived the privilege nor authorized his attorney to do so. State v. Shipley, 94 Ohio App.3d 771, 641 N.E.2d 822 (Licking 1994).
In addition to the client's (1) agreement to waiver of the privilege or disclaimer of it, or failure to object to the opposition's use of privileged testimony (see section 1.6:510), or (2) any subsequent disclosure to a third party (see section 1.6:520), waiver can also occur as a result of the client's putting the subject of the privileged communication in issue in litigation, or by asserting that the legal assistance provided was ineffective, negligent, or otherwise wrongful.
Waiver by voluntary testimony of client: Pursuant to ORC 2317.02(A), if a party voluntarily testifies as a witness in his own behalf, an attorney to whom communications may have been made by such party, in the relation of attorney and client, may be compelled to testify on the same subject concerning which the party has testified, even though no reference was made in the party's testimony to any attorney-client communications having been made. Spitzer v. Stillings, 109 Ohio St. 297, 142 N.E. 365 (1924) (syllabus two). The same rule applies with respect to cross-examination of a party who has voluntarily testified on direct — that is, the party can be compelled to testify concerning communications with his or her attorney, in that relation, on any pertinent subject testified to on direct, event though no mention was made of such communications during the direct testimony. Spitzer, id. (syllabus one); accord Westervelt v. Rooker, 4 Ohio St.3d 146, 149, 447 N.E.2d 1307, 1310 (1983) ("where a party testifies in any trial, such party may be cross-examined by the opposing party concerning communication with his attorney on any subject pertinent to his claim or defense, even though the fact of communications that have passed between them has not been referred to by such party in direct examination," citing Spitzer, syllabus one). Thus in Westervelt, a vehicular accident case, the Supreme Court held that the trial court had correctly permitted the defendant on cross-examination "to ask Westervelt [the plaintiff] about a conversation with his attorney during a recess concerning the placement of an 'X' in the wrong place on an aerial photograph" of the accident site. Id. at 148-49, 447 N.E.2d at 1310.
The Second District Court of Appeals, citing Spitzer, has similarly held that when a client voluntarily testifies, he waives the privilege as to any subject pertinent to his claim that he testified to, regardless of whether his testimony ever referred to the conversations with his attorney. Surovec v. LaCouture, 82 Ohio App.3d 416, 612 N.E.2d 501 (Montgomery 1992). Surovec found that Ohio courts have consistently held that the intent of the language in ORC 2317.02(A), permitting the attorney to testify "on the same subject" if "the client voluntarily testifies," is to permit the attorney to testify in an unlimited or unrestricted sense — meaning the subject of the controversy and not merely the subject of the communication. Id. According to another court of appeals, the "same subject" refers not only to the subject of an actual communication testified to by the client but also to the subject of the controversy about which the client testifies. Thus, where the client testified that her former attorney was not authorized to agree to a settlement on her behalf, the attorney could be compelled to testify as to any otherwise privileged communications with her concerning that general subject matter. It was error, however, to permit the attorney to testify as to matters beyond the subject of the client's agreement to the settlement and the lawyer's authority to act on her behalf. Walsh v. Barcelona Assocs., Inc., 16 Ohio App.3d 470, 476 N.E.2d 1090 (Franklin 1984) (citing Spitzer). Accord, as to the "same subject" rule, First Union Nat'l Bank v. Maenle, 162 Ohio App.3d 479, 2005 Ohio 4021, 833 N.E.2d 1279 (citing Ward). See also Rospert v. Old Fort Mills, Inc., 81 Ohio App. 241, 78 N.E.2d 909 (Marion 1947) (dictum; nonprejudicial error for trial court to have refused to allow defendant to cross-examine plaintiff as to what he told his attorney on value issue after plaintiff had testified on direct as to value).
A few Ohio cases have concluded that Spitzer was overruled sub silentio by the Supreme Court's later opinion in Foley v. Poschke, 137 Ohio St. 593, 31 N.E.2d 845 (1941) (per curiam), which held that it was error to allow the attorney to "testif[y] as to matters which were of a confidential nature and concerning which the defendant had not voluntarily testified." See Christophel v. McNeill, No. 375, 1980 Ohio App. LEXIS 13006, at *20, 21 (Highland Dec. 24, 1980). The court of appeals, quoting the Foley language set forth above, concluded that since the client in Christophel did not testify on direct as to confidential communications with counsel and since his testimony on cross as to such communications was not voluntary, there was no waiver and the client's attorney could not testify as to the communications. Accord Tandon v. Tandon, No. 99 JE 36, 1999 Ohio App. LEXIS 6416 (Jefferson Dec. 27, 1999) (client testified on direct; on cross, client testified as to his attorney's involvement in filing the lawsuit; court of appeals, citing, inter alia, Foley, held that the testimony concerning privileged matters on cross-examination was not voluntary and therefore there was no waiver); see also Carver v. Deerfield Township, 139 Ohio App.3d 64, 742 N.E.2d 1182 (Portage 2000) (cross-examination testimony at deposition not voluntary, therefore no waiver; Tandon quoted). The Supreme Court, however, doesn't seem to consider Spitzer overruled, as they have followed Spitzer in one post-Christophel case ( Westervelt, 4 Ohio St.3d 146, 447 N.E.2d 1307) and have cited it in two others ( Moscovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 838, 635 N.E.2d 331 (1994), and Lemley v. Kaiser, 6 Ohio St.3d 258, 452 N.E.2d 1304 (1983)). In any event, if Foley did not overrule Spitzer, the two cases are difficult to reconcile. The potential impact of the Spitzer rule has not gone unnoticed; as Giannelli and Snyder remark:
This holding, if applied literally, has far-reaching and apparently unintended consequences. It would result in the waiver of the privilege in virtually every case in which a client testifies . . . . Once the client testifies, the client's attorney could be called as a witness by the other party and compelled to divulge what the client had said about the case.
1 Paul C. Giannelli & Barbara Rook Snyder, Baldwin's Ohio Practice, Evidence § 501.13, at 339-40 (2d ed. 2001).
Voluntary testimony by the client concerning confidential attorney-client communications will of course serve to waive the common-law privilege as well. See Travelers Indem. Co. v. Cochrane, 155 Ohio St. 305, 98 N.E.2d 840 (1951) (client statement admissible; any privilege that attached was destroyed by client's voluntary testimony on the subject).
Implied waiver of privilege by client: If a client asserts a claim that puts otherwise privileged information at issue (typically from a previous representation), the question of implied waiver arises. In this connection, at least six Ohio decisions have utilized the three-part test articulated in Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975), in determining whether the attorney-client privilege was waived. [Be advised that the following discussion must be read in light of the decision in Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487, set forth in detail below.] Pursuant to the Hearn test, the privilege is impliedly waived by the party asserting the privilege if all of the following three conditions are satisfied: (1) assertion of the privilege is the result of some affirmative act, such as filing suit, by the asserting party; (2) through this affirmative act, the asserting party put the protected information at issue by making it relevant to the case; and (3) application of the privilege would have denied the opposing party access to information vital to its defense. See First Union Nat'l Bank v. Maenle, 162 Ohio App.3d 479, 2005 Ohio 4021, 833 N.E.2d 1279 (multiple-count counterclaim in response to foreclosure action; all three prongs of Hearn satisfied; complete waiver of privilege), appeal allowed, 107 Ohio St.3d 1680, 2005 Ohio 6480, 839 N.E.2d 402 (table), appeal dismissed and court of appeals opinion ordered not precedential, 110 Ohio St.3d 1240, 2006 Ohio 3820, 851 N.E.2d 507 (as to why nonprecedential, see discussion of Supreme Court opinion in Jackson v. Greger below); Jackson v. Greger, 160 Ohio App.3d 258, 2005 Ohio 1588, 826 N.E.2d 900 (Montgomery) (malpractice suit; no waiver), aff'd on other grounds, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487 (see discussion of Supreme Court opinion below). Smalley v. Friedman, Domiano & Smith Co., 2004 Ohio 2351, 2004 Ohio App. LEXIS 2076 (Cuyahoga) (legal-malpractice action; denial of protective order affirmed; attorney-client privilege argument rejected on Hearn waiver grounds); G. Rand Smith Co., L.P.A. v. Footbridge Capital, LLC, 2002 Ohio 2189, 2002 Ohio App. LEXIS 2198 (Union) (malpractice counterclaim; trial court granted counterclaimant's motion to compel; in reversing, appellate court applied Hearn implied-waiver test and found third prong (vital to defense) not satisfied); Ward v. Graydon, Head & Ritchey, 147 Ohio App.3d 325, 770 N.E.2d 613 (Clermont 2001) (malpractice suit; waiver); H&D Steel Serv. Inc. v. Weston, Hurd, Fallon, Paisley & Howley, No. 72758, 1998 Ohio App. LEXIS 3422 (Cuyahoga July 23, 1998) (malpractice suit; no waiver); Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 612 N.E.2d 442 (Montgomery 1992) (negligence and breach of contract suit by insured against insurer; no waiver -- second and third prongs of Hearn test not satisfied). Only information that is unavailable to the defense from any other source is "vital." H&D Steel, 1998 Ohio App. LEXIS 3422, at *9. See also Cuervo v. Snell, 232 B.R. 684 (Bankr. S.D. Ohio 1999) (privilege waived where defense asserted in adversary proceeding is premised on advice of counsel, citing Hearn and Schaefer).
The Ward court clearly thought it was applying the common-law privilege waiver rules (see 147 Ohio App.3d at 331, 770 N.E.2d at 617-18); this appears to be the case in Smith as well, whereas Jackson and Schaefer seemed to be applying the statutory privilege (see 82 Ohio App.3d at 328, 612 N.E.2d at 446), as did Smalley (see 160 Ohio App.3d 258, 826 N.E.2d 900, at paras. 11-15). H&D is silent on whether the court was applying the statutory or the common-law privilege. On the one hand, the opinion letter sought in H&D (and the documents and communications sought in Jackson) can be viewed as "attorney testimony," to which the statute is applicable; on the other, since the discovery was sought from plaintiff, not its attorney, it may well be "client testimony," to which common-law privilege rules are applicable, see Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 486, 599 N.E.2d 699, 702 (Wood 1991) (per curiam). There is no such uncertainty as to Maenle, Schaefer, Smalley, Smith and Ward -- since discovery of the attorney's advice (Schaefer), files (Smalley), and testimony (Maenle, Smith and Ward) was sought from the attorney, it was "attorney testimony." Nevertheless, inasmuch as waiver under the statute (ORC 2317.02(A)) is restricted to the exceptions expressly set forth therein, State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995) (discussed in section 1.6:520), it would seem that in all of these cases the implied waiver at issue (a waiver not set forth in ORC 2317.02(A)) should be operative only in instances involving the common-law privilege.
Although not using the Hearn test, at least one other Ohio case has recognized
that the attorney-client privilege may indeed be waived when, as here, the client and attorney deliberately place the contents of such [attorney-client] communications in issue by presenting sworn statements and raising advice of counsel as a defense.
Kremer v. Cox, 114 Ohio App.3d 41, 58, 682 N.E.2d 1006, 1017 (Summit 1996) (applying the statutory privilege — appropriately so, it would seem, since it not only involved "attorney testimony" by affidavit, but also the client voluntarily "testified" by affidavit and the attorney's affidavit, attached to a motion by the client, can fairly be deemed to have been made with the client's express consent). The Kremer case also noted that the Ohio Supreme Court has stated that this waiver argument "would have merit if it [had been] addressed to the attorney-client privilege of R.C. 2317.02(A)," rather than an OH Civ R 26(B)(3) exemption. In re Election of Nov. 6, 1990 for Office of Atty. Gen., 57 Ohio St.3d 614, 615, 567 N.E.2d 243, 244 (1991) (opinion in chambers by Moyer, C.J.). (The Election case is also discussed at section 1.6:750.)
The Hearn implied-waiver issue was placed in the sharpest possible focus by the opinions issued in Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487, decided October 11, 2006. Jackson was a malpractice suit by a former client, Jackson, against her ex-lawyer, Greger, for allegedly giving the client advice to plead guilty to a resisting arrest charge. This had the result of precluding, on collateral-estoppel grounds, her subsequent civil-rights claim, with new legal representation, against the arresting officers. In the malpractice action, Greger sought from Jackson production of "all attorney-client communications and documentation related to the Section 1983 action." Id. at para. 4. Jackson resisted production, and the trial court granted Greger's motion to compel. On appeal, the Second District Court of Appeals applied the three-pronged Hearn test and found the second and third prongs not satisfied. Thus there was no implied waiver and the trial court order was reversed. The Supreme Court granted review.
In the majority opinion, Chief Justice Moyer held that privileged communications directly between an attorney and client can be waived only by the means set forth in ORC 2317.02(A), purporting to follow State v. McDermott, 72 Ohio St.3d 570, 651 N.E.2d 985 (1995) (as to which see section 1.6:520). Since the case involved direct communications between attorney and client and since the Hearn implied-waiver test is not included in the statute, that test was inapplicable. Further, since neither of the grounds for waiver expressly stated in the statute – express consent by or voluntary testimony of the client on the same subject – was present, there was no waiver, and the trial court's order to compel was therefore erroneous.
This affirmance of the court of appeals, albeit on entirely different grounds, raises significant issues and questions concerning the interplay between the statutory testimonial privilege of 2317.02(A) and the common-law privilege. Much of the Chief Justice's reasoning is entirely consistent with settled Ohio law. Thus, the statutory privilege can be waived only in the manner stated in the statute. Moreover, this statutory testimonial privilege and the exclusive means of waiver of it contained in the statute apply in discovery as well as at trial. The result is that Hearn-type waivers are inapplicable to attorney-client communications controlled by the statute. With respect to the body of Ohio law utilizing the Hearn rationale, the Court had this to say:
[W]e are aware that several Ohio courts of appeal have applied the Hearn test [citing in footnote, inter alia, First Union, Ward, and Frank W. Schaefer]. We are nevertheless guided by the significant body of law from this court that has consistently rejected the adoption of judicially created waivers, exceptions, and limitations for testimonial privilege statutes.
Id. at ¶ 13 (bracketed material added).
The flaw in this analysis, subscribed to by four members of the Court, is that the applicable statute prohibits testimony by "an attorney" concerning privileged communications; in this case, it was an attorney who was seeking to compel his former client to divulge privileged information, a matter simply not covered by the statute. Indeed, the majority opinion confirms its own flaw in footnote, where the Court correctly states that the 2317.02(A) testimonial privilege "prevents an attorney from testifying...." Id. at ¶ 7, n.1 (emphasis added). Only Justice Lanzinger picked up on this point; her opinion, concurring in judgment only, is right on the money. She wastes no time in pointing out that the statute "precludes an attorney from testifying on issues covered by the attorney-client privilege [quoting 2317.02(A)]." Id. at ¶¶ 22-24 (emphasis in original). She continues:
The statute's prohibition does not address the client. Nor does R.C. 2317.02(A) abrogate the common-law privilege. We recently noted in State ex rel Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St.3d 261, 2005 Ohio 1508, 824 N.E.2d 990, that "R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. The common-law attorney-client privilege, however, 'reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship.' Am. Motors [Corp. v. Huffstutler (1991)], 61 Ohio St.3d  at 348, 575 N.E.2d 116." Id. at ¶ 26.
Jackson at ¶ 25 (bracketed material, except the last, in original). Accord Grace v. Mastruserio, 2007 Ohio 3942, 2007 Ohio App. LEXIS 3580 (Hamilton), discussed below. Justice Lanzinger goes on to an equally telling point – that the majority's reliance on McDermott is misplaced. She notes that McDermott is relied on for the proposition that "'because this case involves communications directly between an attorney and a client, R.C. 2317.02(A) applies.'" McDermott, "however, squarely considered whether an attorney could be compelled to testify without a statutory waiver." Id. at ¶ 26.
This case is different. Greger did not seek to compel testimony of an attorney for trial or at deposition but sought the production of documents and answers to interrogatories from Jackson concerning her federal civil rights action. R.C. 2317.02(A) by its terms does not apply. Jackson's claim of privilege arises not from statute but from common law.
Id. at para. 27. Justice Lanzinger laments the implicit repudiation of the Hearn rule in Ohio; she disagrees that nontestimonial matters are covered by the statute and would approve and apply the "useful test of Hearn v. Rhay." Id. at ¶ 31.
Despite the persuasiveness of the Lanzinger opinion, apparently the law of Ohio now is (but see the Grace case, discussed below) that any effort to compel disclosure of direct attorney-client communications, whether from the attorney or the client or a former client, will be controlled by ORC 2713.02(A) and its limited exceptions. All of the well-considered pre-Jackson authority limited the application of the statute and its exceptions to compelled attorney testimony. Of course, even after Jackson (which dealt only with compelled client disclosure), an Ohio attorney retains the right to reveal “information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes [set forth in Ohio Rule of Professional Conduct 1.6(b), some of which were also included in former DR 4-101(C), e.g. to prevent the commission of a crime by the client or other person [1.6(b)(2); see DR 4-101(C)(3)]; to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client [1.6(b)(5); see DR 4-101(C)(4); to comply with other law or a court order [1.6(b)(6); see DR 4-101(C)(2)].” See sections 1.6:600-:650.
There have been two intermediate appellate court post-Jackson opinions, both from Hamilton County. The first, Smith v. Smith, 2006 Ohio 6975, 2006 Ohio App. LEXIS 6935 (Hamilton), an action seeking judicial construction of a trust, reversed a trial court decision denying plaintiff’s motion in limine seeking exclusion of the testimony of the lawyer who had drafted the trust based on the attorney-client privilege set forth in RC 2317.02(A). The trial court's denial of the motion was based on the waiver theory set forth in Hearn v. Rhay. Noting that the Supreme Court had specifically rejected the Hearn test in Jackson v. Greger, the appellate court reversed for consideration of whether plaintiff could carry her burden of showing that any aspect of the lawyer’s testimony is covered by the privilege.
See, in contrast, the second appellate opinion after Jackson, Grace v. Mastruserio, 2007 Ohio 3942, 2007 Ohio App. LEXIS 3580 (Hamilton). In Grace, the trial court in a malpractice action ordered the plaintiff to comply with the defendant-lawyer’s discovery request to review the entire divorce case file (which included that of defendant’s successor, as well as that of defendant). The defendant-lawyer, Mastruserio, had represented plaintiff in the divorce proceeding. (This procedural context is almost identical to that presented in Jackson). The court of appeals reversed, holding that the lower court in such circumstances must hold a hearing and review the case file for privileged materials, rather than issuing a blanket order, without hearing, compelling production of the file in its entirety. The news in the Grace case, however, is not so much this holding, but rather how the court got there. The court’s analysis is instructive and, unlike Jackson v. Greger, provides a primer on the correct interrelationship between the statutory privilege and the common-law attorney-client privilege. The plaintiff argued that the privilege can be waived only by the means set forth in the statute and that there was no such waiver here. The court’s response was “[n]ot so,” for the reasons it proceeded to explain: First, the statutory privilege precludes “an attorney from testifying on issues covered by the attorney-client privilege.” Id. at para. 16 (emphasis by the court). In other words, the statute’s application by its terms is limited to instances in which “a party is seeking to compel testimony of an attorney for trial or at a deposition – as opposed to cases where a party is seeking to compel production of nontestimonial documents. . . . In cases that are not covered under R.C. 2317.02, the common-law attorney client privilege applies.” Id. at para. 17. Then, in a bit of judicial legerdemain, Judge Painter disposes of the Jackson ruling as follows:
But the Jackson court expressly limited its holding to the case that was under consideration: “In the instant case, * * * we decline to add a judicially created waiver to the statutorily created privilege.” The abbreviated language used by the Jackson court left the decision whether the common-law implied-waiver doctrine applies to a particular set of facts to the sound discretion of the courts. As we have noted, Ohio appellate districts have favored application of the Hearn test. And our reading of Jackson convinces us that the Ohio Supreme Court did not abrogate the common law, and that it sufficiently limited its holding to the facts of that case such that appellate districts may decide for themselves, on a case-by-case basis, whether the common-law doctrine of implied waiver as announced by Hearn is applicable.
Id. at para. 22. The icing on the cake comes in the following words:
Categorical judicial application of the bright-line statutory waiver followed by Jackson obstructs the trial court’s discretion in ruling on nontestimonial discovery matters, raises form over substance, is a clear misreading of the express language of R.C. 2317.02, and works an injustice on parties who are able to satisfy Hearn.
Id. at para. 24. In sum, the court holds that the statute protects against compelled attorney testimony (such as in the Smith case, cited above) and that the implied-waiver exception of Hearn is relevant to records and documents in those respects where the statute is inapplicable. Thus in Grace, “Mastruserio sought compelled discovery of the entire case file [including the file of the plaintiff’s successor attorney, Collins], not Collin’s testimony, as prohibited by R.C. 2317.02(A).” Id. at para. 26. “The common-law implied waiver exception to the attorney-client privilege survives R.C. 2317.02 and Jackson.” Id. at para. 27. The case was remanded for hearing and review by the trial court to determine the scope of the protection provided to the file by the privilege and the work-product doctrine.
Apparently no attempt was made to have the Supreme Court review the Grace court’s reading of Jackson v. Greger. As is apparent from our own commentary on the Jackson case, set forth above and written for the most part prior to the decision in Grace, we believe that Judge Painter got it right.
One other subsidiary, but nevertheless important, issue raised by the Lanzinger concurrence is whether the statute is to be interpreted narrowly to apply only to testimony at trial or at deposition. She so argued. We, on the other hand, have taken the position that, so long as the effort to compel the production of privileged information was from the attorney, the statute ought to apply. Although Judge Painter has now joined Justice Lanzinger’s camp in asserting an exclusively “testimonial” privilege, that would not be the result under the Jackson majority opinion. If the waiver issue involves direct communication between attorney and client, the statutory standard and its exclusive exceptions apply, even if the issue involves compelled production of nontestimonial evidence in the form of allegedly privileged documents from the client. Query whether the Supreme Court’s rewriting of the Ohio privilege statute, which by its express terms is limited to precluding “an attorney from testifying,” will withstand subsequent analysis.
Another strange aspect of the Jackson majority opinion is that it does not mention pertinent language in the Ohio Rules of Professional Conduct, which were approved by the Supreme Court in August 2006 (effective February 1, 2007), two months prior to its decision in Jackson. Ohio Rule 1.6 cmt.  states that
[t]he attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which the lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.
(Emphasis added.) It is difficult to reconcile this language, which the Supreme Court blessed in August 2006, with its holding in Jackson two months later.
Filing of complaint insufficient: Filing of a domestic relations complaint, which contains the address of the plaintiff as required by court rule, does not constitute a waiver of the attorney-client privilege as to the client's subsequent address. ORC 2317.02(A) provides the exclusive means by which the statutory privilege can be waived, and, inasmuch as the client neither consented or voluntarily testified on the subject itself, the subsequent address remained privileged, and it was error to hold the attorney, appearing as a witness pursuant to subpoena, in contempt for refusing to disclose the address. Waldmann v. Waldmann, 48 Ohio St.2d 176, 358 N.E.2d 521 (1976) (per curiam).
Voluntary testimony of prospective client: Even when the client does not ultimately hire the lawyer, if the prospective client voluntarily testifies regarding his or her conversation with the lawyer, the lawyer may be compelled to testify on that subject in accordance with ORC 2317.02(A). In such circumstances, the lawyer may reveal confidences and secrets. Bd. of Comm'rs on Grievances & Discipline Op. 91-15, 1991 Ohio Griev. Discip. LEXIS 14 (June 14, 1991) (syllabus).
Attack on lawyer's services: Waiver also occurs with respect to communications, otherwise privileged, that are relevant to a contention by the client that the lawyer's assistance was defective. See generally 1 Restatement (Third) of the Law Governing Lawyers § 80(1)(b) & cmt. c (2000). This typically arises in claims of ineffective assistance of counsel (see generally sections 1.1:200 & 1.7:200) and in malpractice actions (see generally sections 1.1:300-:390). This "waiver" rule would appear to substantially overlap that portion of the "exception" for lawyer self-protection dealing with defending against charges of wrongful conduct, as discussed in section 1.6:630. See Ohio Rule 1.6(b)(5). Indeed, the Surovec case, discussed in section 1.6:630, while analyzing the issue in terms of lawyer self-defense, concluded that the privilege had been "waived" as a result of the former client's suit against the law firm for malpractice. 82 Ohio App.2d 416, 419-20, 612 N.E.2d 501, 504. Accord Jackson v. Greger, 160 Ohio App.3d 258, 2005 Ohio 1588, 826 N.E.2d 900 (Montgomery) (malpractice plaintiff acknowledged that she had waived privilege regarding her communications with former attorney/defendant whose prior representation was basis of malpractice action), affirmed on other grounds, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487. The difference between the two concepts is that the exception presumably would permit the lawyer to use otherwise privileged information (or other "information relating to the representation"), if necessary, to defend himself from attacks by third parties as well as by clients, whereas only the client can waive the privilege. See also the discussion in section 1.6:600 below, as to the interrelationship between disclosure of information relating to the representation permitted or required by Ohio Rule 1.6(b) or (c) and the exceptions to the privilege.
- Primary Ohio References: Ohio Rule 1.6(b), (c); ORC 2317.02(A), 2151.421(A)(l)-(A)(2)
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Giannelli & Snyder, Baldwin's Ohio Practice, Evidence §§ 501.11-501.14; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 9.5
- Commentary: ABA/BNA §§ 55:901 et seq.; ALI-LGL §§ 81-85; Wolfram § 6.4
Ohio Rule 1.6 expressly includes privileged information within its definition of "information relating to the representation" that a lawyer shall not reveal unless permitted or required to do so under Rule 1.6(b) or (c). As a result, all of these permitted or mandatory disclosures can be viewed as potential exceptions to the privilege in Ohio, to the extent they involve "information protected by the attorney-client privilege under applicable law." It must be remembered, of course, that the 1.6(b) and (c) disclosures can have a broader reach than privileged information – they encompass as well information not protected by the attorney-client privilege, so long as it is "information relating to the representation." The following discussion in sections 1.6:610-:670, most of which treat matters within the disclosure provisions of Rules 1.6(b) and (c), focuses on information protected by the privilege. Finally, when ORC 2317.02(A) is applicable, the only exceptions are those set forth in the statute.
Since 1953, ORC 2317.02(A) has provided that when the client is deceased an attorney may testify with the express consent of the client's surviving spouse, executor, or administrator. See 125 Ohio Laws 313 (1953). This amendment repudiated the holding in Swetland v. Miles, 101 Ohio St. 501, 130 N.E. 22 (1920), that an action to contest the validity of a will is not an exception to the statutory rule prohibiting an attorney from testifying as to confidential communications with the client, even though the client is dead at the time of the action and even though the client's personal representative consents to the testimony.
By amendment effective June 15, 2006, ORC 2317.02(A) now provides that the statutory privilege does not apply with respect to communications between an attorney and a client, since deceased, if the communication is relevant to a dispute between parties claiming through the deceased client and if the dispute addresses client competency when the client executed a document that is the basis of the dispute, or whether, when executing such a document, the deceased client was the victim of fraud, undue influence, or duress.
Attorney as subscribing witness: When a testator procures his attorney as a subscribing witness to a will, the testator thereby expressly consents, in accordance with the terms of what is now ORC 2317.02(A), that the attorney may testify as any other subscribing witness regarding the capacity of the testator and any other fact affecting the validity of the will. In an action to construe the will, however, the lawyer who drafted the will is not competent to vary the terms thereof or to testify concerning communications between attorney and client regarding the estate itself, the objects of the testator's bounty, or the meaning and effect of the provisions of the will. Knepper v. Knepper, 103 Ohio St. 529, 134 N.E. 476 (1921) (syllabi two & three); accord Nicholl v. Bergner, 76 Ohio App. 245, 63 N.E.2d 828 (Lorain 1945) (in will-construction action, allowing attorney for testatrix to testify concerning declarations bearing upon intent, meaning, or effect of provisions in will, made by testatrix to attorney who drafted and was subscribing witness to will, was error; while there was no waiver of the statutory prohibition against such attorney testimony, the court found the error nonprejudicial given the totality of other evidence supporting the trial court's decision).
Ohio Rule 1.6(b)(1) permits a lawyer to disclose information otherwise protected by the attorney-client privilege if the lawyer reasonably believes disclosure is necessary "to prevent reasonably certain death or substantial bodily harm." See discussion at section 1.6:320.
General considerations: A communication is excepted from the attorney-client privilege if the lawyer reasonably believes disclosure of the otherwise privileged information is necessary "to prevent commission of a crime by the client or other person." Ohio Rule 1.6(b)(2). See discussion at section 1.6:330. In the traditional parlance of attorney-client privilege law, this is the "crime-fraud" exception. Once again, note that the 1.6(b) exceptions (including 1.6(b)(2)) are not expressly stated as exceptions under ORC 2317.02(A). As a result, an attorney cannot be compelled to testify about such matters; the Rule 1.6(b) exceptions give him permission to disclose privileged information in contexts other than that controlled by ORC 2317.02(A). Rule 1.6(b)(6) (compliance with law or court order) is something of a special case, as to which see section 1.6:655.
A privileged communication may be a shield of defense as to crimes already committed, but it cannot be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society. State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam). Accord Kracht v. Kracht, Nos. 70005, 70009, 1997 Ohio App. LEXIS 2412 (Cuyahoga June 5, 1997) ("Communications otherwise protected by the attorney-client privilege . . . are not protected if the communications are made in furtherance of crime, fraud, or other misconduct." Id. at *26); State v. Bissantz, 3 Ohio App.3d 108, 444 N.E.2d 92 (Clermont 1982). But the mere fact that communications may be related to a crime is insufficient to overcome the attorney-client privilege. Nix supra.
Note, however, under Ohio Rule 1.6(b)(3), that a lawyer may disclose privileged information regarding past illegal (including criminal) or fraudulent acts by the client, in furtherance of which the client has used the lawyer's services, where the lawyer reasonably believes the disclosure is necessary to mitigate substantial injury to the financial interests or property of another, resulting from such acts. Thus, in the limited circumstances of Rule 1.6(b)(3), the discretionary exception can include disclosure of otherwise privileged information relating to prior illegal or fraudulent acts by the client. See also section 1.6:620A.
The related obligation to disclose past, present, or future crime or fraud related to an adjudicative proceeding (Rule 3.3(b)) is cross-referenced in the mandatory disclosure provision of Rule 1.6(c). See sections 1.6:395 and 1.6:670.
Probable cause requirement for crime-fraud exception: The party invoking the crime-fraud exception must demonstrate that there is a factual basis for a showing of probable cause to believe a crime or fraud has been committed and that the communications in question were in furtherance of that crime or fraud. Absent such proof, an in camera inspection of the records of these communications is unnecessary. Compare State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam) (failure to introduce sufficient, credible evidence to overcome attorney-client privilege based on crime-fraud exception), with Euclid Ret. Vill., Ltd. P'ship v. Giffin, 2002 Ohio 2710, 2002 Ohio App. LEXIS 2788 (App. Cuyahoga) (holding no abuse of discretion by trial court in finding that plaintiffs had satisfied their burden of presenting "factual evidence proving that it had a reasonable basis for believing that the documents contained evidence that Giffin sought Swetland's counsel in furtherance of unlawful activity. Plaintiffs specified the unlawful activity was self-dealing and the unlawful transfer of partnership debt." Id. at ¶ 34.).
Unlawful adoption: Attorneys participating in the private placement for adoption of a minor child, in violation of the statutory adoption procedure, cannot utilize the attorney-client privilege to refuse to testify as to the name and address of the person or persons having possession of the child. Lemley v. Kaiser, 6 Ohio St.3d 258, 452 N.E.2d 1304 (1983). While the court did not invoke the crime-fraud exception as such, the "wrongdoing" described in the opinion is punishable by criminal penalties (see ORC 5103.99(B)), and the case can fairly be read as one in which the attorneys were participating in an ongoing violation in attempting to conceal the whereabouts of the child. In such "egregious circumstances" (id. at 266, 452 N.E.2d at 1311-12), the Court refused to extend the "cloak of protection afforded by the attorney-client privilege." Id., 452 N.E.2d at 1312. [Query, however, whether the result in Lemley can be reconciled with the statutory dictates of ORC 2317.02(A) that an attorney "shall not testify" unless one of the statutory exceptions applies. No such exception was present in Lemley.] See further discussion of the case at section 1.6:450.
Lack of good faith effort to settle: "[I]t is beyond contradiction that the [attorney-client] privilege does not attach in a situation where the advice sought by the client and conveyed by the attorney relates to some future unlawful or fraudulent transaction." Moscovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 661, 635 N.E.2d 331, 349 (1994). Applying this standard to a proceeding for prejudgment interest where the issue was whether the defendant physician in a medical malpractice case had failed to make a good faith effort to settle in violation of ORC 1343.03(C), the Court held that an insurer's claim file was subject to discovery to the extent that it revealed a lack of good faith effort to settle. Id. at 661, 635 N.E.2d at 349. "The only privileged matters contained in the file are those that go directly to the theory of the defense of the underlying case in which the decision or verdict has been rendered." Id. at 639, 635 N.E.2d at 334-35 (syllabus three). The Moskovitz case is also discussed at sections 1.6:410, 1.6:710, and 1.6:740. Following the Moskovitz rationale, in a case involving allegations of bad-faith denial of insurance coverage, is Boone v. Vanliner Insurance Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (2001) (in such a case, insured is entitled to discover claims-file materials, containing attorney-client communications and showing bad-faith denial of coverage, that were created prior to denial). Boone is discussed in detail at section 1.6:410.
Prior fraud of client on tribunal: In Bd. of Comm'rs on Grievances & Discipline Op. 90-07, 1990 Ohio Griev. Discip. LEXIS 14 (Apr. 20, 1990), the Board considered this prior fraud issue. While the opinion is not a model of clarity, it appears that (1) the lawyer was approached by a potential client to represent him in an administrative matter in which the agency was investigating the potential client's conduct; (2) the potential client disclosed to the lawyer that he had, without the lawyer's knowledge or participation, previously offered falsified records to the administrative agency. The lawyer sought the Board's opinion regarding his obligation to reveal the fraudulent records to the agency. The Board opined that (a) the lawyer could not present the records to the agency if he took the case – to do so would violate DR 7-102(A)(6) (prohibiting presentation of evidence the lawyer knows to be false); (b) the information about the falsified records, provided as it was by a potential client, was revealed in the context of an attorney-client relationship and was therefore a confidence or secret protected by DR 4-101; and (c) the lawyer's DR 4-101 duty of confidentiality with respect to that information superseded his duty to rectify client fraud on a tribunal under DR 7-102(B)(1).
As to the third conclusion – our focus here – the Board's opinion is troublesome in a number of respects. First, query whether 7-102(B)(1) was implicated at all, since the disclosure obligation under that disciplinary rule required that the client fraud on the tribunal must have been perpetrated "in the course of the representation"; in Opinion 90-07, the facts indicate that the fraud occurred prior to any representation by the inquiring lawyer. Second, even if 7-102(B)(1) were applicable, the Board agreed with the version of the rule as amended by the ABA, which version expressly excepted privileged communications from the disclosure duty; the Board did so despite acknowledging that Ohio did not adopt the "except when the information is protected as a privileged communication" language added in 1974 to the ABA Model Code. Third, while the status of Opinion 90-07 is listed as "Current," the Board had appended the notation "[but see, Disciplinary Counsel v. Heffernan, 58 O.S. 3d 260 (1991) . . .]," a case in which the Supreme Court held that a lawyer's failure to report upon learning of a client's past fraud on a tribunal was a violation of DR 7-102(B). It is unclear whether this information was "gained in the professional relationship" by Heffernan, and the Court does not address any confidentiality issues. (Between the status-list revision of August 4, 2006 and that of June 8, 2007 the introductory signal to the Heffernan reference was changed by the Board from "but see" to "See"; there is no explanation for the change.)
Apart from its questionable validity under the Code, one would think that Opinion 90-07 should go the other way under the Rules, which provide that a lawyer, representing a client in an adjudicative proceeding and knowing that "a person, including the client," has engaged in fraudulent conduct relating to the proceeding, must take reasonable measures to remedy the situation, including, if necessary, making disclosure to the tribunal. Ohio Rule 3.3(b). (Unlike 7-102(B)(1), Rule 3.3(b) requires neither that the fraud be perpetrated "in the course of the representation" nor that the perpetrator be a client.) If necessary to satisfy the 3.3(b) duty, Rule 1.6(c) requires the lawyer to disclose information relating to the representation, including information protected by the attorney-client privilege. See section 1.6:670. A lawyer's duty under Rule 3.3(b) (as well as further discussion of Heffernan) is set forth in detail at section 3.3:700.
Ongoing fraud upon tribunal: See Owens-Corning Fiberglas Corp. v. Am. Centennial Ins. Co., 74 Ohio Misc.2d 247, 660 N.E.2d 812 (C.P. Lucas 1995) (rejecting attempt by plaintiff to withhold as privileged a memo from plaintiff's medical director to in-house counsel concerning industry knowledge of asbestosis, when plaintiff had defrauded court in previous Texas litigation with false interrogatory answers ignoring the contents of the memo and when exclusion of the memo in case at bar would perpetuate the original fraud on the Texas court).
Past and ongoing fraud upon IRS: A lawyer serving as corporate counsel, who learned in the confidential relationship that the corporation had misrepresented certain facts to the Internal Revenue Service and as a result had received a favorable ruling from the IRS, would not be permitted to disclose same under former OH DR 4-101(B)(1) or 4-101(C), but had to withdraw from the representation if the corporation will not consent to disclosure of the fraud. In such circumstances, the lawyer "may not continue to aid or assist [the] client (the corporation) in allowing the Internal Revenue Service ruling, which was based on false information, to continue to benefit the corporation." Ohio State Bar Ass'n Informal Op. 87-10, at 4 (Sept. 17, 1987). In addition, the lawyer should determine whether the IRS would be considered a "person or tribunal" to whom disclosure would be required under former OH DR 7-102(B). If so, the lawyer should request the client to rectify the fraud, and if the client refuses, the lawyer must reveal the information to the IRS. Id. at 4-5. A comparable result would follow under Rule 3.3(b).
With respect to ongoing crime or fraud generally, see 1 Restatement (Third) of the Law Governing Lawyers § 82 cmt. e (2000):
The crime-fraud exception depends on a distinction between past client wrongs and acts that are continuing or will occur in the future. . . .
The exception does apply to client crimes or frauds that are ongoing or continuing. With respect to past acts that have present consequences, such as the possession of stolen goods, consultation of lawyer and client is privileged if it addresses how the client can rectify the effects of the illegal act – such as by returning the goods to their rightful owner – or defending the client against criminal charges arising out of the offense.
. . . [But] [c]onfidential communications concerning the ways in which Client can continue to possess the stolen goods, including information supplied by Client about their present location, are not protected by the privilege because of the crime-fraud exception.
Id. at 617-18. Again, this general guidance does not alter the disclosure obligations of the lawyer under Ohio Rule 3.3(b) with respect to a client’s past fraud on a tribunal.
Compliance with IRS reporting requirements: The Internal Revenue Code requires that anyone engaged in a trade or business must file Form 8300 when that person receives more than $ 10,000 in cash. 26 USC § 6050I (2000). When an attorney receives such a payment from a client, the attorney must report the transaction and the client's identity on Form 8300 (§ 6050I(b)), unless the attorney can show that compliance with IRS Form 8300 would compromise confidential attorney-client communication. Office of Disciplinary Counsel v. Massey, 80 Ohio St.3d 605, 687 N.E.2d 734 (1998) (per curiam) (suspending attorney for six months for conspiring with client to arrange payment of attorney's fees in manner designed to avoid IRS reporting requirement; citing United States v. Blackman, 72 F.3d 1418 (9th Cir. 1995)). In Massey, respondent made no claim of privilege. (If he had, it would have raised issues under the crime-fraud exception.) See also United States v. Ritchie, 15 F.3d 592 (6th Cir. 1994), noting that federal case law holds that (1) the attorney-client privilege is not a barrier to enforcement of a summons compelling a lawyer to comply with his Form 8300 obligations and (2) client identity and payment of fees are not privileged information (but cf., as to identity, section 1.6:450). Ritchie is further discussed at section 1.6:370.
1.6:620A Exception to Mitigate Substantial Financial Injury Resulting from Client's Illegal or Fraudulent Act
Ohio Rule 1.6(b)(3) permits a lawyer to reveal information otherwise protected by the attorney-client privilege if the lawyer reasonably believes disclosure is necessary
to mitigate substantial injury to the financial interests or property of another that has resulted from the client's commission of an illegal or fraudulent act, in furtherance of which the client has used the lawyer's services.
Since this provision was not contained in the Code (nor was the exception stated in Rule 1.6(b)(4), discussed in the next section), there is at present no case law dealing with disclosure of privileged information in this context. See discussion at section 1.6:340. The aspect of Rule 1.6(b)(3) permitting disclosure of privileged information as to past illegal or fraudulent acts by the client is discussed in section 1.6:620.
Ohio Rule 1.6(b)(4) permits a lawyer to disclose information otherwise protected by the attorney-client privilege where the lawyer reasonably believes it necessary "to secure legal advice about the lawyer's compliance with these rules." See discussion at section 1.6:350.
Ohio Rule 1.6(b)(5) permits an attorney to disclose "information protected by the attorney-client privilege under applicable law" reasonably believed by the lawyer to be necessary
to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding, including any disciplinary matter, concerning the lawyer's representation of the client.
Comment  addresses defending against claims of lawyer complicity in client conduct, or other lawyer misconduct. "Such a charge can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together." Ohio Rule 1.6 cmt. . Such a defense need not await the filing of a proceeding; the response can be made directly to the person making the assertion. Id.
Comment  specifies that "a lawyer entitled to a fee is permitted by division (b)(5) to prove the services rendered in an action to collect it." Ohio Rule 1.6 cmt. .
Opinions under the former OHCPR relevant to Rule 1.6(b)(5) include: A former client had engaged attorney A (Reichard) in a law firm to handle his divorce action. He subsequently engaged attorney B of the same firm to change his will. In a malpractice action against the firm and attorney A, in which the client voluntarily testified, the client argued that any waiver of the privilege as to attorney A did not apply to the rest of the firm, and that knowledge possessed by such other members of the firm remained privileged.
We think this argument fails. The appellant [client] did have a professional relationship with the firm . . . . [H]e brought his action not only against the individual members of the firm, but also the firm as a corporate entity. In our opinion, not only appellee Reichard but the law firm . . . was entitled to gather their resources from the knowledge contained within the firm in order to defend themselves against the accusation of malpractice and negligent conduct. Having sued the firm and the individual attorneys, the privilege, if any, as between the client and the several attorneys was waived.
Surovec v. LaCouture, 82 Ohio App.3d 416, 419-20, 612 N.E.2d 501, 504 (Montgomery 1992) (citing former OH DR 4-101(C)(4) and the "voluntary testifies" exception in ORC 2317.02(A)).
A lawyer, who was listed as a creditor in his former clients' (husband and wife) bankruptcy filing and who suspected that a fraudulent statement may have been made concerning the existence of an asset, could, despite the privileged nature of the attorney's knowledge regarding the asset, investigate the truthfulness of the bankruptcy filing by the former clients and reveal client confidences regarding the existence and value of the asset in the bankruptcy proceeding to the extent necessary to collect his fee. Cincinnati Bar Ass'n Op. 93-94-01 (n.d.).
These exceptions under Rule 1.6(b)(5) are further discussed in sections 1.6:360 and 1.6:365.
There is no exception for fiduciary-lawyer communications in Ohio Rule 1.6. As set forth in 1 Restatement (Third) of the Law Governing Lawyers § 84 (2000), this exception applies to an otherwise privileged communication between the trustee of an express trust (or similar fiduciary) and a lawyer retained to advise the trustee on trust administration if, in a proceeding in which the trustee is charged with breach of fiduciary duty by a beneficiary, the communication is relevant to the claimed breach.
In the only Ohio case found that deals with the privileged status of fiduciary-lawyer communications, Weierman v. Mardis, 101 Ohio App.3d 774, 656 N.E.2d 734 (Hamilton 1994), the court held that the trial court did not err in ruling in a will contest that the contestor (the testator's brother) could depose the lawyer for the guardian and successor guardian (the latter of which was also named executrix of the estate in the contested will) of the testator's person and estate prior to his death. While the court recognized (and quoted) ORC 2317.02(A) (which does not contain an exception for testimony of attorneys for guardians), the court's analysis is grounded in the application of regular discovery rules to privilege issues that arise in the discovery context. The court of appeals reasoned that since it could not be argued that every answer by the lawyer during the deposition would be privileged, the deposition could go forward:
[W]e are unwilling to overturn the trial court's order allowing the deposition of [the lawyer] simply because he may reveal information which the [executrix] deems privileged. [The lawyer's] status as the attorney for the estate's guardian, standing alone, is not sufficient to exempt him from the normal discovery procedures employed by the appellee.
Id. at 777, 656 N.E.2d at 737 (bracketed material added). The court noted, however, that if a dispute should arise concerning specific questions during the deposition, the trial court could then determine whether the responses by the attorney constitute privileged communications.
In Weierman, the premise of the brother's will contest suit was that the testator was of unsound mind and subject to undue influence and duress when, in executing a second will during the guardianship period, he made the contestor one of a number of beneficiaries, rather than the sole beneficiary. This fact pattern might well have brought the rule excepting certain fiduciary-lawyer communications (see Restatement § 84 above) into play, but the court gives no indication that this exception entered into its decision. Nor has any Ohio case been found that deals with the exception as set forth in Restatement § 84.
Pursuant to this exception, also not included in Ohio Rule 1.6, the privilege may be withheld in a dispute between the organization and constituents to whom the persons managing the organization owe fiduciary duties, if the court finds that (1) management is charged with breach of its obligation to the constituents or to the organization itself; (2) the communication in dispute occurred prior to the charge and directly relates thereto; and (3) the need for disclosure is sufficiently compelling and the threat to confidentiality sufficiently limited to justify withdrawing the privilege. See 1 Restatement (Third) of the Law Governing Lawyers § 85 (2000) (stating the exception set forth in Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), and as applied on remand in 56 F.R.D. 499 (S.D. Ala. 1972)).
While no Ohio state cases were found, two federal cases from the Southern District of Ohio have cited and discussed Garner, the leading case setting forth this exception. See In re Dayco Corp. Derivative Sec. Litig., 99 F.R.D. 616, 620-21 (S.D. Ohio 1983); In re Baldwin-United Corp., 38 B.R. 802, 805 (Bankr. S.D. Ohio 1984). See also Fausek v. White, 965 F.2d 126 (6th Cir. 1992), where the Sixth Circuit adopted the Garner rationale in a direct (nonderivative) minority shareholder action against the defendant majority shareholder and CEO. Finding that the controlling shareholder owed the minority shareholders a fiduciary duty under Tennessee law, the court held that plaintiffs had established good cause under Garner and therefore the corporation (not a party to the action) could not rely on the privilege to prevent disclosure of the information sought in discovery. (It is unclear whether Fausek was a close corporation case, but under Tennessee law this distinction is apparently of no consequence on the fiduciary-duty issue. See Johns v. Caldwell, 601 S.W.2d 37, 41 (Tenn. App. 1980) (close corporation case, but rule that majority shareholder has fiduciary duty to the minority stated generally).
With respect to Ohio law on the existence of a fiduciary duty within organizations, see Crosby v. Beam, 47 Ohio St.3d 105, 108, 548 N.E.2d 217, 220 (1989) ("Generally, majority shareholders have a fiduciary duty to minority shareholders," but that duty is "heightened" in the close corporation context). Accord Cruz v. S. Dayton Urological Assocs., Inc., 121 Ohio App.3d 655, 662, 700 N.E.2d 675, 679 (Montgomery 1997)). See Morrison v. Gugle, 142 Ohio App.3d 244, 255, 755 N.E.2d 404, 412 (Franklin 2001) (applying heightened-duty rule where one of two equal shareholders dominated close corporation). See also the pre-Garner shareholder derivative case of Selama-Dindings Plantations, Ltd., v. Durham, 216 F. Supp. 104 (S.D. Ohio 1963) ("major" (largest single) shareholder in non-close corporation, as well as directors, stands in fiduciary relationship to corporation and its minority shareholders, citing, inter alia, Thomas v. Matthews, 94 Ohio St. 32, 43, 113 N.E. 669, 671 (1916) (directors "occupy a strictly fiduciary relation to the stockholders and are accountable to them on principles governing that relationship.")), aff'd per curiam, 337 F.2d 949 (6th Cir. 1964). See further discussion of director/officer/majority shareholder fiduciary duty at section 1.13:220.
Ohio Rule 1.6(b)(6) permits an attorney to disclose information relating to the representation, "including information protected by the attorney-client privilege under applicable law," in order "to comply with other law or a court order." Subdivision (b)(6) is further discussed in section 1.6:370 supra, with examples of disclosure in compliance with "other law or a court order."
The similar "required by law or court order" exception in former OH DR 4-101(C)(2) was under examination in Allen County Bar Ass'n v. Williams, 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973. The Court there had previously imposed a disciplinary sanction; the order had included placing respondent on probation, during which respondent was to cooperate with a monitoring attorney appointed by the relator bar association "'to ensure that [respondent] uses adequate procedures to communicate with his clients and keeps them well informed about their cases.' Id. [92 Ohio St.3d] at 106, 748 N.E.2d 1101." 95 Ohio St.3d 160, 2002 Ohio 2006, 766 N.E.2d 973, at ¶ 2. The monitoring attorney asked the respondent to obtain waivers of the attorney-client privilege from his clients for purposes of monitoring the conditions of respondent's probation. Respondent was unable to do so; the monitoring attorney then asked the Supreme Court to rule that its order permitted respondent's confidential files to be made available to the monitor, so that he might fulfill his monitoring duties. In denying the monitor's request, the Supreme Court held that the "required by law or court order" exception to the prohibition against revelation of client confidences was inapplicable on the facts presented:
[T]here is no authority that DR 4-101(C)(2) covers the function of a monitor who is attempting to help an attorney on probation from harming his clients. . . .
* * * *
We therefore conclude that the monitoring attorney's oversight in this case is limited to nonprivileged matters . . . . The monitor will not be authorized to examine respondent's privileged client correspondence, or the matters discussed in client meetings and other communications, but only the consistency and promptness with which the respondent attends to client matters.
Id. at ¶¶ 14, 16 (emphasis added).
See section 1.6:370 for discussion of the mandatory/permissive aspect of Rule 1.6(b)(6).
The interaction between Rule 1.6(b)(6) and ORC 2317.02(A) deserves special mention. As stated in section 1.6:370, this "permissive" disclosure provision is in fact mandatory if there is a court order or law mandating disclosure and the attorney has exhausted all objections. When the context is one controlled by ORC 2317.02(A), additional fine-tuning is required. ORC 2317.02(A) issues will invariably arise when the lawyer is "ordered" to testify; the question then becomes, is it within a specific exception of the statute. If it is, then the lawyer can be compelled to testify. If it is not, under the statute, he or she cannot be so compelled. In this respect, the mandatory duty not to testify under ORC 2317.02(A) trumps "permissive" disclosure under 1.6(b)(6). The (b)(6) disclosure would still be operative, however, where a "law" called upon the lawyer to disclose, in a nontestimonial capacity, information relating to the representation. See, e.g., ORC 2921.32 (obstruction of justice).
As the language of Ohio Rule 1.6 indicates, a lawyer should act in a manner that preserves the attorney-client privilege. Moreover, the lawyer owes an obligation to advise the client of the privilege and to assert the privilege in timely fashion unless it is waived by the client. See section 1.6:210.
Burden of proof: The party seeking to exclude testimony under the privilege bears the burden of proving (1) that an attorney-client relationship exists, and (2) that the communications at issue were connected with the business for which the attorney was retained. In re Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943). Accord Shaffer v. OhioHealth Corp., 2004 Ohio 63, 2004 Ohio App. LEXIS 15 (Franklin); Waldman v. Waldman, 48 Ohio St.2d 176, 358 N.E.2d 521 (1976).
Client's right to invoke privilege: Pursuant to the common-law rule, the client as witness cannot be compelled to disclose privileged communications that his attorney is not allowed to disclose. Further, a deponent has the right to refuse to answer a question when the answer would infringe any personal privilege (such as the attorney-client privilege) granted by the Constitution, state statutes, or any common-law rule recognized in the state. In re Martin, 141 Ohio St. 87, 47 N.E.2d 388 (1943) (syllabi six & seven).
In camera inspection of evidence: In a civil case, upon assertion of the privilege, the trial court "shall" conduct an in camera inspection to determine which of the allegedly privileged documents are in fact protected. Peyko v. Frederick, 25 Ohio St.3d 164, 165, 495 N.E.2d 918, 919 (1986) (syllabus two) (defendant's "claims file"), followed in Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 663, 635 N.E.2d 331, 351 (1994). Accord McHenry v. Gen. Accident Ins. Co., 104 Ohio App.3d 350, 662 N.E.2d 51 (Cuyahoga 1995) (trial court obligated to provide in camera inspection before granting motion to compel production where issues of attorney-client privilege are raised).
At least prior to the Potts decision, discussed in the next paragraph, in camera hearings were not automatic when the privilege was asserted in a criminal case. Before engaging in an in camera review to determine whether the privilege is applicable in such a case, it was held that the court "'should require a showing of a factual basis adequate to support a good faith belief by a reasonable person' that in camera review of the materials may reveal evidence establishing an applicable privilege or that the privilege is outweighed by other rights." State v. Hoop, 134 Ohio App.3d 627, 639, 731 N.E.2d 1177, 1185 (Brown 1999) (quoting from United States v. Zolin, 491 U.S. 554, 572 (1989)).
The landscape on this issue in criminal cases would appear to have been altered by the decision in In re Subpoena Duces Tecum Served on Attorney Potts, 100 Ohio St.3d 97, 2003 Ohio 5234, 796 N.E.2d 915; this is certainly so where privilege is raised with respect to documents subject to subpoena. In Potts, the trial court ordered the lawyer to appear and submit certain of the subpoenaed documents for an in-camera review. Potts appeared, but without the documents, and was found to be in criminal contempt. The trial court held the documents not privileged. On appeal, the court of appeals affirmed the order of in-camera inspection but reversed the contempt judgment because the lower court's rejection of Potts' privilege arguments, prior to any in-camera review, was premature. The Supreme Court held that upon a claim of privilege with respect to subpoenaed documents, the trial court "shall" conduct an in-camera review of the documents prior to ruling on the privilege claim. Syllabus two. In so concluding, it reasoned as follows:
The court of appeals held that assertions of privilege raise an issue best considered only after a trial court determines that each of the four criteria of the Nixon [United States v. Nixon, 418 U.S. 683 (1974)] analysis have been met [in evidentiary hearing testing reasonableness of subpoena]. We agree with the court of appeals when it concluded that "the trial court's rejection of [Potts's] privilege arguments was premature and, perhaps, ill advised." When a claim of privilege is raised, an in-camera inspection must occur in order that the trial court can determine the specific issue based upon its actual review of the records claimed to be privileged.
Id. at ¶ 22 (emphasis and last bracketed material by the Court).
Discovery of privileged communications: "Although the language of R.C. 2317.02(A) speaks only to the prohibition of testimony of privileged matters, it has nonetheless been stated that wherever a claim of privilege would be proper at the actual trial of the case, it is proper at the discovery stage. Because the same rules of privilege govern the scope of discovery as govern admissibility at trial, a party may obtain pretrial discovery of privileged materials only if such materials fall within some exception to the privilege or if the privilege will be waived at trial." Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 612 N.E.2d 442 (Montgomery 1992) (citations omitted). See generally OH Civ R 26(B). For discussion of the facts of Schaefer and the court's analysis in holding there was no waiver of the privilege with respect to the matters at issue (attorney's files), see section 1.6:530.
Must raise objection to assertion of privilege: Once an attorney-client privilege claim is raised, the party opposed to the invocation of attorney-client privilege must raise an objection in order to preserve the issue on appeal. State v. Broady, 41 Ohio App.2d 17, 321 N.E.2d 890 (Franklin 1974) (noting that invocation of attorney-client privilege by the opposing party was not supported by law, but refusing to reverse on this ground, in part due to the fact that the trial record did not clearly indicate that an objection was raised).
Injunction to prevent breach of duty by attorney: Where an attorney or an agent for an attorney violates the attorney-client privilege by disclosing confidential information of his former employer, an injunction against future violations may be as broad as necessary to avert the harm complained of by the former client. Am. Motors Corp. v. Huffstutler, 61 Ohio St.3d 343, 575 N.E.2d 116 (1991) (upholding an injunction prohibiting an attorney/agent from using, to the detriment of the opposing party, privileged information gained while in the employ of the opposing party's counsel). (See section 1.6:475 for a discussion whether confidentiality, not privilege, analysis should have been applied.)
Contempt: Where counsel asserts a good-faith claim of privilege in an unsettled or untested area of professional ethics, penalties for contempt (violation of court order or rule - see sections 3.1:500 and 3.5:400) are inappropriate. Cf. In re Subpoena Duces Tecum Served on Attorney Potts, 100 Ohio St.3d 2003 Ohio 5234, 796 N.E.2d 915 (criminal contempt imposed by trial court, reversed by court of appeals; Supreme Court, without expressly reversing the contempt conviction, affirmed that portion of appellate court judgment that provided basis for contempt reversal--that rejection of lawyer's privilege arguments prior to conducting in-camera review was premature). Attorneys should not be forced to violate their duties to their clients as the price of avoiding punishment for contempt. See In re Burns, 42 Ohio Misc.2d 12, 536 N.E.2d 1206 (C.P. Hamilton 1988) (lawyer held not required to disclose client's name in response to grand jury question in context of crime already committed, where there was no existing court order or law requiring him to do so). See also discussion of In re Original Grand Jury Investigation, 89 Ohio St.3d 544, 733 N.E.2d 1135 (2000), at section 1.6:380.
Ohio Rule 1.6(c), a provision not found (although implicit) in MR 1.6, obligates the lawyer to disclose privileged information
to the extent the lawyer reasonably believes necessary to comply with Rule 3.3 or 4.1.
There is no comment pertaining to division (c); the Task Force's Ohio Code Comparison to Rule 1.6 states that division (c)
makes explicit that other rules create mandatory rather than discretionary disclosure duties. For example, Rules 3.3 and 4.1 corresponded to DR 7-102(B), which requires disclosure of client fraud in certain circumstances.
See Ohio Rules 3.3(b)-(c) & cmt.  and 4.1(b) & cmt. . The mandatory disclosure obligation of Rule 1.6(c) is further discussed in section 1.6:395.
- Primary Ohio References: ORC 149.43; OH Civ R 26(B)(3); OH Crim R 16(B)(2), (C)(2); OH R Evid 612; See Ohio Rule 1.6 cmt. 
- Background References: ABA Model Rule 1.6
- Ohio Commentary: Staff Notes to OH Civ R 26(B); Giannelli & Snyder, Baldwin's Ohio Practice, Evidence § 501.15; Guttenberg & Snyder, The Law of Professional Responsibility in Ohio § 9.2(C)
- Commentary: ABA/BNA § 91:2201; ALI-LGL §§ 87-93; Wolfram § 6.6
To encourage each side in litigation to prepare fully, some protection must be provided for these preparatory efforts. Lawyers need to proceed without undue fear that the results of their efforts or their mental impressions will have to be turned over to their opponents. Work-product immunity provides that protection. See, to similar effect, the statement of policy set forth in the first paragraph of OH Civ R 26(A), quoted below in this section at "Work-product requirements."
Work-product immunity applies in criminal as well as civil cases. E.g., State v. Today's Bookstore, Inc., 86 Ohio App.3d 810, 820, 621 N.E.2d 1283, 1290 (Montgomery 1993) (citing OH Crim R 16(B)). An important statutory provision having impact in both civil and criminal areas is the Ohio Public Records Act (ORC 149.43), which is discussed at various points below. Unlike the test for production of ordinary work-product under OH Civ R 26(B)(3) (see section 1.6:720), neither OH Crim R 16 nor the Ohio Public Records Act includes a "good cause" requirement — material is either protected from, or subject to, disclosure without more, pursuant to the categories of protected and unprotected matter as set forth in the rule and the statute.
Criminal actions: OH Crim R 16(B)(2) bars discovery or inspection of reports, memoranda, or other internal documents made by the prosecuting attorney or by his or her agents in connection with the investigation or prosecution of the case, or of statements made by witnesses or prospective witnesses to state agents, except, on motion of defendant, as provided in OH Crim R 16(B)(1)(a), (b), (d), (f), and (g):
(a) -- written statements, written summaries of oral statements, and recorded grand jury testimony, of the defendant or co-defendant;
(b) -- defendant's prior criminal record;
(d) -- reports of physical or mental examinations and scientific tests or experiments made in connection with the particular case;
(f) -- evidence favorable to the defendant; and
(g) -- prior statements of a witness inconsistent with the direct testimony of the witness at trial, which inconsistency is to be determined following the testimony by an in camera inspection by the court, with both the prosecuting attorney and defense attorney present and participating.
In addition, a defendant is entitled, on motion, to documents or tangible objects (a) material to the defense, (b) intended for use by the prosecuting attorney as evidence at trial, or (c) obtained from or belonging to the defendant, OH Crim R 16(B)(1)(c), and to the names and addresses of the witnesses whom the prosecution intends to call at trial, subject to limitations on disclosure designed to protect the witnesses from harm. OH Crim R 16(B)(1)(e).
If the defendant obtains discovery under OH Crim R 16(B)(1)(c), (d), or (e), the prosecution then has, on motion, a right to obtain the same categories of material from the defendant. See OH Crim R 16(C)(1)(a)-(c). In addition, the prosecution is entitled, on motion, to an in camera inspection of prior statements of defense witnesses (other than the defendant), to determine the existence of inconsistencies between the direct testimony and the prior statement, with both the prosecuting attorney and the defense attorney present and participating. OH Crim R 16 (C)(1)(d). Defense reports, memoranda, or other internal defense documents, or statements made to the defense attorney or his agents by witnesses or prospective witnesses are not subject to discovery, except as provided in 16(C)(1)(b) and (d). OH Crim R 16(C)(2).
Civil actions: OH Civ R 26(B)(3) provides as follows:
Trial preparation: materials. Subject to the provisions of subdivision (B)(4) [ OH Civ R 26(B)(4)] of this rule, a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing of good cause therefor. A statement concerning the action or its subject matter previously given by the party seeking the statement may be obtained without showing good cause. A statement of a party is (a) a written statement signed or otherwise adopted or approved by the party, or (b) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement which was made by the party and contemporaneously recorded.
The Staff Notes to OH Civ R 26(B)(1) (see Page’s Ohio Rev Code Ann, Civil Rules, 156-58 (1994)) discuss the effect of the discovery rule on the scope of the attorney-client privilege in Ohio. The Notes reiterate that the rule makes any relevant matter discoverable if it is "not privileged." The Staff Notes further state that prior to the adoption of the Civil Rules in 1970, witness names and addresses, contained in reports turned over to an attorney for the prosecution or defense of an action, were held privileged. This line of cases began with Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276 (1906), and continued with In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492 (1936); In re Hyde, 149 Ohio St. 407, 79 N.E.2d 224 (1948); In re Keough, 151 Ohio St. 307, 85 N.E.2d 550 (1949); In re Shoup, 154 Ohio St. 221, 94 N.E.2d 625 (1950) (per curiam); In re Tichy, 161 Ohio St. 104, 118 N.E.2d 128 (1954) (per curiam); and In re Bates, 167 Ohio St. 46, 146 N.E.2d 306 (1957) (per curiam). The Notes cite and quote from In re Story, 159 Ohio St. 144, 147-48, 111 N.E.2d 385, 387 (1953), to the effect that, other than the statute prohibiting an attorney from testifying (ORC 2317.02(A)), there is no statutory or constitutional basis for the "Schoepf concept of privilege." As the Staff Notes state:
Rule 26(B) [ OH Civ R 26(B)] rejects Schoepf. Information, including witness names and addresses, turned over to an attorney for prosecution or defense of an action is not absolutely privileged.
The word "privileged" in Rule 26(B)(1) [ OH Civ R 26(B)(1)] does not continue the Schoepf privilege since such an interpretation would drastically limit the intended scope of discovery. For example, it could be used to preclude the discovery of witness names and locations. A Schoepf interpretation of privilege is specifically rejected.
Civil Rules, at 157.
Unfortunately, the Staff Notes cite to many of these same cases and continue to use the term "privilege" in the subsequent discussion of trial preparation materials (OH Civ R 26(B)(3)). Thus:
To be privileged a document must be originated after the facts which give rise to the litigation. In re Keough, 151 Ohio St. 307 (1949) and Travelers Indemnity v. Cochrane, 155 Ohio St. 305 (1951). Privilege does not attach to a document or thing by merely giving it to an attorney. In re Hyde, 149 Ohio St. 407 (1948). Records kept in the ordinary course of business are not privileged. Keough, supra, In re Story, 159 Ohio St. 144 (1953), Dayton v. Smith, 109 Ohio App. 383 (1959) and Parkhurst v. Cleveland, 36 Ohio Ops. 321 (C.P. Cuyahoga County 1947).
Under the rules trial preparation material may be privileged, but the privilege is conditional.
Civil Rules, at 158.
This "conditional privilege" is the work-product immunity for trial preparation materials, not the privilege for confidential communications between attorney and client.
According to the Staff Notes, the work-product "privilege" developed by OH Civ R 26(B)(3) "is a very limited privilege. By definition, it applies only to 'documents or tangible things' prepared in anticipation of litigation or for trial and it may be defeated by showing good cause." Civil Rules, at 158. (See discussion of ordinary work product at section 1.6:720.) The Rule does not, however, destroy the privacy of the attorney's mental impressions or the concept that each side should prepare its case independently. Id. (See discussion of opinion work product at section 1.6:730.)
Work-product requirements: As stated in OH Civ R 26(B)(3), three conditions must be met in order for material to qualify for work-product protection. The material must (1) be a document or tangible thing; (2) have been prepared in anticipation of litigation or trial; and (3) have been prepared [by or] for a party or by or for his representative (including his attorney). Woodruff v. Concord City Disc. Clothing Store, No. 10072, 1987 Ohio App. LEXIS 5914 (Montgomery Feb. 19, 1987) (citing In re Grand Jury Subpoenas, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982)). For example, oral testimony would not qualify under the terms of 26(B)(3), since it is not a document or tangible thing. Nor would an attorney's diary, containing a "few references" to his clients, constitute work product, as it was not prepared in anticipation of litigation. Holmes v. Holmes, No. WD-89-40, 1990 Ohio App. LEXIS 3288 (Wood Aug. 10, 1990). But see State ex rel. Nix v. City of Cleveland, 83 Ohio St.3d 379, 700 N.E.2d 12 (1998) (per curiam) (attorney notes of trial proceedings, status reports concerning pending cases, and legal research conducted by city law department attorneys exempt from disclosure under ORC 149.43(A)(1)(g), where records specifically compiled in reasonable anticipation of defense of civil actions brought against city and city employees).
Despite the language of the Civil Rule, it has long been recognized that attorney work product can also exist in intangible form, such as the attorney's recollection of what witnesses told him, one of the matters at issue in the seminal case of Hickman v. Taylor, 329 U.S. 495 (1947). This unrecorded work product is accorded protection fully comparable to that provided in the Rule to tangible work product, and, as noted in 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure, Civil § 2024, at 338 (2d ed. 1994), "since intangible work product includes thoughts and recollections of counsel, it is often eligible for the special protection accorded opinion work product." Ohio recognizes the Hickman rule, see, e.g., Nelson v. Toledo Oxygen & Equip. Co., 63 Ohio St.3d 385, 387, 588 N.E.2d 789, 790-91 (1992); (quoting, in case where tangible material at issue, with approval the passage from Hickman, 329 U.S. at 511, referring to "mental impressions ... and countless other tangible and intangible ways" comprising lawyer work product), and has applied it in at least one case involving intangible work product. Burgess v. Prudential Ins. Co., No. C-870225, 1988 Ohio App. LEXIS 2867 (Hamilton June 29, 1988) ("Bugress attempted to elicit from Prudential's corporate counsel testimony concerning strategy decisions made by the corporate counsel in the handling of Burgess's claim. This information is clearly protected under Hickman and Upjohn." Id. at *19.). Indeed, as stated in Staff Notes to Rule 26 (1970), "[t]he initial paragraph of [Ohio Civil] Rule 26(A) . . . . is a restatement of Hickman." Rule 26(A) states:
It is the policy of these rules (1) to preserve the right of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (2) to prevent an attorney from taking undue advantage of his adversary's industry or effort.
The Staff Notes further state with respect to Rule 26(B)(3) that, while section (B)(3) liberalizes discovery, it "does not destroy the privacy of the attorney's mental impressions." Hickman also is cited in this segment of the Notes. While the great majority of an attorney's mental impressions end up in tangible form, such as memoranda the lawyer in Hickman may have made from the oral statements he took from witnesses, we have no doubt that Ohio would honor the other half of the Hickman equation – unrecorded oral witness statements presently in the form of the lawyer's mental impressions. Either way, in the language of the U.S. Supreme Court, "we do not believe that any showing of necessity can be made under the circumstances of this case so as to justify production." 329 U.S. at 512.
Public Records Act - Trial preparation materials and investigatory work product: Pursuant to the Ohio Public Records Act (ORC 149.43), "trial preparation records" and "confidential law enforcement investigatory records" are excepted from disclosure by ORC 149.43(A)(1)(g) and (A)(1)(h), respectively. "Trial preparation record" is defined in ORC 149.43(A)(4) in terms that protect any record prepared in anticipation or defense of civil or criminal litigation, specifically including attorney thought processes. "Confidential law enforcement investigatory record" is defined in ORC 149.43(A)(2)(a)-(d) as any record pertaining to a civil, criminal, quasi-criminal, or administrative law enforcement matter, but only to the extent the release of the record would create a high probability of disclosure of (a) the identity of a suspect who has not been charged; (b) the identity of a confidential source; (c) specific investigatory work product; or (d) information that would endanger a law enforcement officer, a witness, a victim, or a confidential source. (As previously noted, the "good cause" requirement for disclosure of ordinary work product under OH Civ R 26(B)(3) is not a part of the test for disclosure under ORC 149.43.)
The trial-preparation and law-enforcement investigatory record work-product exemptions have been successfully invoked in a number of cases. The modern decision dealing most extensively with these exemptions is State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994). In Steckman, Justice Douglas, writing for the Court, expressed his intent to clear away a large amount of previous clutter on these issues and held, in pertinent part, that (1) information not subject to discovery under OH Crim R 16(B), contained in the files of a prosecutor prosecuting a criminal matter, is specifically exempt from release as a trial preparation record pursuant to ORC 149.43(A)(4) (syllabus three), which exemption continues until all trials, actions, and/or proceedings have been completed (syllabus four); and (2), except as required by OH Crim R 16, information assembled by law-enforcement officials in connection with probable or pending criminal proceedings is excepted from disclosure by virtue of the work-product exemption found in ORC 149.43(A)(2)(c), as compiled in anticipation of litigation. This does not include ongoing routine offense and incident reports (including, but not limited to, driving under the influence reports and intoxilizer tests), which are subject to immediate release upon request. (syllabus five). Moreover, a convicted criminal defendant who has exhausted direct appeals may not invoke ORC 149.43 to support a petition for postconviction relief (syllabus six), because the trial-preparation and work-product exemptions in the statute preclude such a defendant from obtaining information other than that to which he or she would be entitled under OH Crim R 16, thereby avoiding the "anomalous" result of a defendant, whose postconviction proceeding was successful, having more information on retrial than in the original proceeding. See 70 Ohio St.3d at 432, 437, 639 N.E.2d at 92-93, 95-96.
In so holding, the Supreme Court determined that certain of its prior decisions had been too liberal in allowing disclosure of records that were not properly subject to disclosure under the statute: "[A]ny and all cases (even though not specifically cited) that are contrary, in whole or in part, to today's decision are of no further force or effect." Id. at 426, 639 N.E.2d at 88 (parenthetical by Court).
The Court did, however, review some of the prior case law. Justice Douglas commenced his analysis with a 1980 decision, State ex rel. Akron Beacon Journal Publishing Co. v. University of Akron, 64 Ohio St.2d 392, 415 N.E.2d 310 (1980), which held that university police "routine incident reports" were nonexempt public records. Id. at 398, 415 N.E.2d at 315. According to Justice Douglas, the Court then made a "quantum leap" from this "narrow beginning" when it decided State ex rel. National Broadcasting Co. v. City of Cleveland, 38 Ohio St.3d 79, 526 N.E.2d 786 (1988). The NBC case cited only the Beacon Journal case for the proposition that "specific investigatory work product" refers only to material that reflects the mental impressions and thought processes of the investigator, even though the Beacon Journal case did not discuss the "specific investigatory work product" exemption. From this beginning, all of the cases listed for purposes of illustration at 70 Ohio St.3d at 429-30, 639 N.E.2d at 90-91, are said to have construed the 1980 Beacon Journal case "too liberally" and "virtually . . . rendered meaningless" the trial preparation record and specific investigatory work-product exemptions. Id. at 430, 431, 639 N.E.2d at 91, 92. The Steckman holding restored what the Court deemed to be the proper breadth of these two exemptions.
The case law has continued to develop since Steckman. State ex rel. Master v. City of Cleveland, 75 Ohio St. 23, 29, 661 N.E.2d 180, 186 (1996) (per curiam), held that the ORC 149.43(A)(2)(c) work-product exception did not apply to the records at issue because the evidence showed only that criminal charges were "possible"; "[t]here is no evidence that criminal charges against police officers or other individuals involved in the alleged wiretapping are either 'pending' or 'highly probable' as required for application of the work product exception," citing Steckman and State ex rel. Police Officers for Equal Rights v. Lashutka, 72 Ohio St.3d 185, 188, 648 N.E.2d 808, 810 (1995) (which added the "highly" probable gloss to the test). However, in the subsequent case of State ex rel. Leonard v. White, 75 Ohio St.3d 516, 518, 664 N.E.2d 527, 529-30 (1996) (per curiam), the work-product exemption was held applicable to materials compiled by law enforcement officers in anticipation of a subsequent criminal proceeding, even though "no suspect has yet been charged," "where it is evident that a crime has been committed." This was sufficient to satisfy the "highly probable" criminal-charges standard. Id., 664 N.E.2d at 529. This analysis was followed in the second Master case (Master II), 76 Ohio St.3d 340, 341-42, 667 N.E.2d 974, 975 (1996) (per curiam), where the Leonard decision was described as one in which the Court "clarified" Steckman syllabus five and the Police Officers decision. Since the records at issue in Master II clearly indicated that a crime had been committed, that was sufficient to protect the records as ORC 149.43(A)(2)(c) work product from disclosure. Compare State ex rel. Ohio Patrolmen's Benevolent Ass'n v. City of Mentor, 89 Ohio St.3d 440, 732 N.E.2d 969 (2000) (not clear that crimes had occurred; thus, criminal proceeding not "highly probable" and work-product exemption inapplicable).
On a number of occasions since the Steckman decision, the Supreme Court has emphasized that nonexempt records do not become exempt merely because they are placed in a prosecutor's file. E.g., State ex rel. Gannett Satellite Info. Network, Inc. v. Petro, 80 Ohio St.3d 261, 685 N.E.2d 1223 (1997) (per curiam); State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 378, 662 N.E.2d 334, 338 (1996) (per curiam) ("Once clothed with the public records cloak, the records cannot be defrocked of their status."); State ex rel. Carpenter v. Tubbs Jones, 72 Ohio St.3d 579, 580, 651 N.E.2d 993, 994 (1995) (documents subject to disclosure under OH Crim R 16(B) and other non-exempt records, such as "routine office and indictment reports" [sic?, citing Steckman, which refers to "routine offense and incident reports"], do not become trial-preparation records simply because they are contained in the prosecutor's file). Conversely, exempt work-product and trial-preparation records do not lose their exempt status as a result of disclosure in criminal discovery. State ex rel. WHIO-TV-7 v. Lowe, 77 Ohio St.3d 350, 673 N.E.2d 1360 (1997).
Steckman expressly held that the trial-preparation-material exemption remains in effect until all proceedings are completed. The same conclusion with respect to the ORC 149.43(A)(2)(c) work-product exemption — implicit in Steckman's holding that this exemption remains applicable during a petition for postconviction relief — was made explicit in State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 360, 673 N.E.2d 1365, 1369 (1997) (per curiam) (both of these exemptions remained applicable to records relating to the investigation and prosecution of various individuals, even though two of those individuals had already been convicted and sentenced, because there remained the possibility that they could be granted a new trial, and the third person had been charged but had not yet been tried.).
Further refinement of the rule with respect to the length of time the work-product exemptions remain in effect was provided in State ex rel. Cleveland Police Patrolmen's Ass'n v. City of Cleveland, 84 Ohio St.3d 310, 703 N.E.2d 796 (1999). There, the Court held that the Steckman rule — that the exemptions remained in effect until all criminal proceedings are completed — is satisfied when the defendant had agreed not to pursue any further proceeding that might result in a new criminal trial, i.e., an appeal or petition for post-conviction relief. Justice Cook, joined by two other justices, filed an interesting dissent in which she noted that the defendant had not yet filed the affidavit confirming her prior "agreement" not to pursue further proceedings and that, even if she did so, she still had a statutory right to pursue such relief. Justice Cook further asks what the result would be, under the decision of the majority, if otherwise exempt information is released to a litigant who swears not to pursue a matter further and thereafter "is required to defend a criminal appeal or a civil proceeding on the subject?" Id. at 313, 703 N.E.2d at 798 (emphasis in original).
In an opinion applying Steckman and other Supreme Court opinions dealing with the Ohio Records Act, the court of appeals in State ex rel. Beacon Journal Publishing Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999), examined the "trial preparation records" exception. After concluding that time and financial records of the Ohio Public Defender's Office were "routine office records" outside the scope of "trial preparation records," the court went on to hold that in any event the trial preparation records exception did not apply where, as in the case before it, all proceedings in the matter were completed. There are, however, "rare" situations in which a continued exemption is justified, when release of the records would reveal specific trial techniques applicable in other pending cases in which the Defender's Office was involved. Thus, the court ordered the Defender's Office to submit in camera, and identify with particularity, any and all records that the Office contends would be applicable in cases other than the completed case at bar. Id. at 427-28, 731 N.E.2d at 254-55.
Decisions confirming the Steckman rule that police incident reports are public records, not protected by the confidential law enforcement investigatory exemption of ORC 149.43(A)(1)(h) & (A)(2)(c), include State ex rel. Rasul-Bey v. Onunwor, 94 Ohio St.3d 119, 760 N.E.2d 421 (2002) (per curiam) (police incident reports not within the ORC 149.43(A)(2)(c) exemption for "trial preparation records"; peremptory writ granted compelling respondent to provide access to same); State ex rel. Beacon Journal Publ'g Co. v. Maurer, 91 Ohio St.3d 54, 741 N.E.2d 511 (2001) (per curiam) ("Incident reports initiate criminal investigations but are not part of the investigation"). Accord, as to 911 tapes, State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 662 N.E.2d 334 (1996) (per curiam). Accord, as to DOJ settlement proposal, State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163. And see State ex rel. Wilson-Simmons v. Lake County Sheriff's Dep't, 82 Ohio St.3d 37, 693 N.E.2d 789 (1998) (pursuant to Public Records Act, employee sought email allegedly containing racial slurs against her; this email did not meet the definition of "record" in ORC 149.011(G) because it did not document the department's policies or procedures). The Court, however, rejected the department's assertion that no public-office email could ever be a public record under ORC 149.43. 82 Ohio St.3d at 42 n.1, 693 N.E.2d at 793 n.1.
The Court in Dupuis expressly stated that "'any doubt is to be resolved in favor of disclosure,'" and that exceptions "'to disclosure must be strictly construed against the public records custodian,'" 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163, at ¶¶ 11, 16 (citations omitted). This trend was continued in State ex rel WBNS-TV v. Dues, 101 Ohio St.3d 406, 2004 Ohio 1497, 805 N.E.2d 1116, in which the Court held that a sealed and confidential settlement agreement between private parties submitted to a probate court in resolution of wrongful death and survival claims in lieu of litigation was a public record that must be disclosed. While there was no argument in Dues that the records came within any of the statutory exceptions, the Court's language in Dupuis in favor of disclosure could be read as reflecting an approach different from that announced in the Steckman line of cases. A later opinion, however, seems consistent with the Steckman approach in its application of the exception for confidential law-enforcement investigatory records. See State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005 Ohio 5521, 835 N.E.2d 1243.
Discovery in post-trial proceedings for prejudgment interest: In Moskovitz v. Mt. Sinai Medical Center, 69 Ohio St.3d 638, 639, 635 N.E.2d 331, 334-35 (1994) (syllabus three), the Supreme Court held as follows:
In an R.C. 1343.03 proceeding for prejudgment interest, neither the attorney-client privilege nor the so-called work product exception precludes discovery of the contents of an insurer's claims file.
With respect to OH Civ R 26(B)(3), the Court concluded that the good-cause requirement is met if the material sought in discovery is "that which is appropriate to effectuate the General Assembly's purposes in enacting [ORC 1343.03(C)] — to encourage and bring about settlements." 69 Ohio St.3d at 662, 635 N.E.2d at 350. Presumably, this means that in a prejudgment interest proceeding, from a work-product perspective, insurer's claims files are discoverable, subject only to material constituting opinion work product — "matters contained in the file . . . that go directly to the theory of defense of the underlying case . . . ." This case is also discussed at sections 1.6:410, 1.6:620, and 1.6:740.
Common-interest exception: The common-interest exception to work-product immunity was found inapplicable to a coverage dispute between the insured and liability insurers; the court held that the common-interest doctrine applies only if the attorney actually represents both the insured and the insurer. Owens-Corning Fiberglas Corp. v. Allstate Ins. Co., 74 Ohio Misc.2d 174, 660 N.E.2d 765 (C.P. Lucas 1993). Consistent with the nomenclature used elsewhere in this treatise, the "common interest" described in OCF was actually a co-client or common-representation situation, rather than a common-interest arrangement, in which clients with common interests are separately represented. See sections 1.6:480-:490. Regardless of whether the correct nomenclature was used, the underlying basis of the exception was not present in any event. As noted by the OCF court, there was no common goal, common interest, or common representation in the underlying lawsuits, because "the defendants [insurers] have neither represented nor indemnified OCF with respect to its underlying asbestos bodily injury lawsuits. Instead, it was "an imbittered dispute over whether or not insurance coverage applies, . . . . rendering any reference to a 'common interest' somewhat laughable." 74 Ohio Misc.2d at 181, 660 N.E. 2d at 769.
Ordinary work product defined: Ordinary work product, sometimes referred to as "ordinary fact," "unprivileged fact," or "fact" work product, includes witness statements (but see Woodruff v. Concord City Disc. Clothing Store, No. 10072, 1987 Ohio App. LEXIS 5914 (Ohio App. Montgomery Feb. 19, 1987), discussed below at section 1.6:730), underlying facts, and written or oral information transmitted to an attorney and recorded as conveyed. Ordinary work product receives substantially less protection than opinion work product and may be discovered upon a showing of "good cause" -- that is, "substantial need, that the information is important in the preparation of the [requestor's] case and that there is an inability or difficulty in obtaining the information without undue hardship." State v. Hoop, 134 Ohio App.3d 627, 642, 731 N.E.2d 1177, 1187 (Brown 1999).
An Ohio court of appeals, noting that OH Civ R 26(B)(3) "only protects work-product, 'in anticipation of litigation,'" referred to claims-file material, prepared during an underinsured motorist carrier's initial investigation of a claim made by one of its insureds prior to any anticipated litigation, as "the ordinary work-product" of the carrier, not protected by OH Civ R 26(B)(3). See Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 203, 757 N.E.2d 849, 855 (Mahoning 2001) (relying on, inter alia, the Supreme Court's analysis in Boone v. Vanliner Ins. Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (2001), to the effect that there is no work product at that stage of the investigation because it has not yet been determined whether coverage exists). While the Dennis conclusion of nonprotection is correct, the reference to the material as "ordinary work product" is odd; such material is not work product at all, because not prepared in anticipation of litigation, as the Boone case (which Dennis cites and quotes) and OH Civ R 26(B)(3) itself make clear. This is probably just a poor choice of words; most likely the court was intending to refer to the usual, everyday business records of the company.
Without delineating whether the documents at issue were ordinary or opinion work product, the court in Garg v. State Auto. Mut. Ins. Co., 155 Ohio App. 3d 258, 2003 Ohio 5960, 800 N.E.2d 757 (Miami), applied Boone in holding that asserted work-product documents in the claims file were subject to discovery in bad-faith denial-of-claim litigation, if created prior to the denial of the claim, even though they were created after the threat of litigation.
The Staff Notes to OH Civ R 26(B)(3) state that while OH Civ R 26(B)(3) liberalizes discovery practice, it does not destroy the privacy of the attorney's mental impressions or the concept that each side should prepare its case independently. It does not allow the lazy lawyer to automatically have the fruits of the work of the diligent lawyer. Baldwin's Ohio Rev. Code Ann., Rules of Court, Civil, at 589 (2004).
Opinion work product generally: Opinion work product is that which reflects the attorney's mental impressions, opinions, conclusions, judgments, or legal theories. Because it concerns the mental processes of the attorney, not discoverable fact, it is afforded nearly absolute protection. State v. Hoop, 134 Ohio App.3d 627, 731 N.E.2d 1177 (Brown 1999). Accord Helton v. Kincaid, 2005 Ohio 2794, 2005 Ohio App. LEXIS 2621 (Warren) (citing Hoop); Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 757 N.E.2d 849 (Mahoning 2001) (recognizing rule in dictum).
Attorneys' and agents' notes: Notes by an attorney or his agent that convey the impressions of the attorney or agent are protected as opinion work product, even when such notes are recording witness statements (which might otherwise be considered ordinary work product) because the notes reveal the agent's or attorney's thoughts. State v. Hoop, 134 Ohio App.3d 627, 731 N.E.2d 1177 (Brown 1999). Accord Woodruff v. Concord City Disc. Clothing Store, No. 10072, 1987 Ohio App. LEXIS 5914, at *10 (Ohio App. Montgomery Feb. 19, 1997) (stating that notes of conversations with a witness are "so much a product of the lawyer's thinking and so little probative of the witness' actual words that they are absolutely protected from disclosure.") (quoting In re Grand Jury Investigation, 412 F. Supp. 943, 949 (E.D. Pa. 1976)).
Communications from attorney to expert: In a somewhat confusing opinion, the court in Helton v. Kincaid, 2005 Ohio 2794, 2005 Ohio App. LEXIS 2621 (Warren), held that letters from a party's attorney to an expert witness for the party were protected work product. The court acknowledged that opinion work product receives near absolute protection in Ohio (citing Hoop), whereas fact work product may be discovered upon a showing of good cause. While such a letter would almost invariably contain mental impressions, opinions, and theories of the attorney, the court never squarely addressed the fact/opinion issue and proceeded to hold that such material is not discoverable absent a showing of good cause under Ohio Civ R 26(B)(3). Perhaps this was the unusual case where the letter contained only fact work product, for the successful appellant apparently argued only that appellees failed to show good cause for its production. See id. at para. 5. Compare Angelo v. Stack, No. 90 CA00487, 1991 Ohio App. LEXIS 1272 (Lorain March 27, 1991) (allowing cross-examination of plaintiff's expert with respect to letters received from plaintiff's attorney, where expert had received additional material from the attorney, re-assessed the situation, and changed his opinion; no abuse of discretion in allowing inquiry into content of letters, "[i]n light of the extraordinary circumstances surrounding this significant change of opinion," id. at *10).
A closely related issue was addressed in Stanton v. Univ. Hosp. Health Sys., 166 Ohio App.3d 758, 2006 Ohio 2297, 853 N.E.2d 343 (Cuyahoga). In Stanton, plaintiff's experts' testimony at deposition raised the issue of whether and to what extent a nurse/paralegal employed by plaintiff's counsel had assisted in preparing the expert reports. The Eighth District Court of Appeals affirmed a trial court order compelling plaintiff to produce the paralegal for deposition on the narrow issue of how the expert reports were generated after telephone conversations between the paralegal and the experts concerning the substance of their reports. Although the court explicitly recognized that opinion work product "enjoys a nearly absolute immunity and can be discovered only is very rare and extraordinary circumstances," it concluded that "the trial court's order of [the paralegal's] deposition goes solely to the issue of how the reports were generated, protecting any intrusion into the mental processes that went into creating the reports." Id. at ¶¶ 11, 14. See Harry D. Cornett, The Work Product Doctrine and Expert Witness Reports, Cleve B.J., July/Aug. 06, at 18.
(Note as well that the Sixth Circuit has ruled as a matter of federal law that under Fed R Civ P 26(a)(2) opinion work product provided to testifying experts must be disclosed in discovery. Reg'l Airport Auth. v. LFG, LLC, 460 F.3d 697 (6th Cir. 2006). See also Timothy J. Fitzgerald, New Ethical Rules and Case Law Regarding the Attorney-Client Privilege and Work-Product Doctrine, Clev. B.J., Jan. 2007, at 10.)
Burden of proof: The party seeking to invoke work-product immunity bears the initial burden of demonstrating that the items it seeks to protect are documents and tangible things prepared in anticipation of litigation or for trial. Aetna Cas. & Sur. Co. v. Desprez, No. 52634, 1987 Ohio App. LEXIS 7167 (Cuyahoga Feb. 5, 1987) (citing Peyko v. Frederick, 25 Ohio St.3d 164, 495 N.E.2d 918 (1986)). Likewise, under the Ohio Public Records Act (ORC 149.43) a governmental entity invoking an exception to disclosure (including the "trial preparation" exception set forth in ORC 149.43(A)(1)(g) and (A)(4) and the "specific investigatory work product" exception set forth in ORC 149.43(A)(1)(h) and (A)(2)(c)), bears the burden of proof that the contested records are exempt from disclosure. State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997); State ex rel. Nat'l Broad. Co. v. City of Cleveland, 38 Ohio St.3d 79, 79, 526 N.E.2d 786, 786 (1988) (syllabus two).
In camera inspection: Where the materials sought are arguably subject to the protection of the work-product immunity, the party seeking protection may request an in camera inspection of the materials by the trial judge. In such circumstances, the trial court is obliged to conduct such an inspection prior to granting a motion to compel production. McHenry v. Gen. Accident Ins. Co., 104 Ohio App.3d 350, 662 N.E.2d 51 (Cuyahoga 1995). The court may then grant the adverse party access to those portions of the materials that it determines are not protected. Aetna Cas. & Sur. Co. v. Desprez, No. 52634, 1987 Ohio App. LEXIS 7167 (Cuyahoga Feb. 5, 1987) (citing Peyko v. Frederick, 25 Ohio St.3d 164, 495 N.E.2d 918 (1986)).
Discovery on showing of good cause: Under OH Civ R 26(B)(3), a party may discover documents and tangible things prepared by or for another party in anticipation of litigation only upon a showing of good cause. Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 612 N.E.2d 442 (Montgomery 1992). The definition of "good cause" is without precise parameters and varies with each case. Woodruff v. Concord City Disc. Clothing Store, No. 10072, 1987 Ohio App. LEXIS 5914 (Montgomery Feb. 19, 1997). Four primary factors are considered in determining whether good cause exists to compel production: (1) the extent to which the party seeking discovery can obtain the information directly; (2) the extent to which alternate sources of information are available (where unavailability is not due to the neglect of the attorney seeking discovery); (3) the importance of the information to the case of the party seeking discovery; and (4) the extent to which the material sought reflects the analysis of the adverse party's attorney. Perry v. Dobbins, No. 589, 1990 Ohio App. LEXIS 1400 (Jackson April 4, 1990). See Fuchsman v. Dallas & Mavis Forwarding Co., No. 1124, 1985 Ohio App. LEXIS 8963 (Ross Sept. 26, 1985) (stressing that courts will consider the likelihood that a party, even if it obtains the information by independent means, will not have the substantial equivalent of the documents it seeks).
Good-cause showing not required for own statement: A party has an absolute right to his or her own statement previously given concerning the action or its subject matter; a showing of good cause is not required. OH Civ R 26(B)(3).
Good cause where witness is available: The statement of a witness ordinarily cannot be discovered where the witness is equally available to the party seeking discovery. Exceptions to the rule are recognized where: (1) the witness is hostile to the party seeking discovery; (2) the length of time since the original statement makes that statement especially valuable as a nearly contemporaneous recollection; or (3) there are indications that the prior statement is inconsistent with a version given to the party seeking discovery. Perry v. Dobbins, No. 589, 1990 Ohio App. LEXIS 1400 (Jackson April 4, 1990).
Discretion of trial court: The existence of protected work product and good cause are discretionary determinations to be made on a case-by-case basis by the trial court and will not be reversed on appeal absent a determination that the trial court abused its discretion. Aetna Cas. & Sur. Co. v. Desprez, No. 52634, 1987 Ohio App. LEXIS 7167 (Cuyahoga Feb. 5, 1987) (citing Peyko v. Frederick, 25 Ohio St.3d 164, 495 N.E.2d 918 (1986)).
Attorney's conduct at issue: Where defendant attorneys' conduct in a matter is at issue in the proceeding (serious allegations of the attorneys' ethical misconduct in intentionally misdirecting notice to plaintiff, backed up by affidavits by former secretaries of one of the attorneys, which affidavits were the subject of defendants' assertion of attorney-client privilege), the work-product doctrine is inapplicable. Kracht v. Kracht, Nos. 70005, 70009, 1997 Ohio App. LEXIS 2412 (Cuyahoga June 5, 1997) (citing Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine § 2(V)(C), at p. 388 (3d ed. 1997) [in the 4th ed. 2001, § 2(VI)(C), at 589]). [It should be noted that there is no indication in the Kracht opinion that work-product immunity, as opposed to the attorney-client privilege, was ever invoked by the defendants.]
Post-trial proceedings for prejudgment interest: In Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St.3d 638, 639, 635 N.E.2d 331, 334-335 (1994), the Court held, in a rather novel interpretation of OH Civ R 26(B)(3) "good cause," that "[i]n a prejudgment interest proceeding, the good cause requirement . . . is that which is appropriate to effectuate the General Assembly's purposes of enacting R.C. 1343.03(C) -- to encourage and bring about settlements." Id. at 662, 635 N.E.2d at 350. See Radnovic v. Cossler, 140 Ohio App.3d 208, 746 N.E.2d 1184 (Cuyahoga 2000), where, in applying the Moskovitz rule, the court held that documents in the claims file, including "analysis of the credibility of witnesses; comments regarding the likelihood of success on the merits; and ... comments on the interaction between the defendants" had to be produced, because "[t]his type of documentation does not go directly to the defense of the case; rather, the documents are the type of documents recorded to indicate whether or not prejudgment interest is warranted." Id. at 216-17, 746 N.E.2d at 1190-91. The court of appeals recognized that under the Moskovitz holding that neither attorney-client nor "so-called" work-product privilege is applicable unless the material goes directly to the theory of defense in the underlying case, "the Supreme Court has essentially found that otherwise privileged documents may lose their privilege for purposes of prejudgment interest discovery." Id at 216, 746 N.E.2d at 1190. (See also section 1.6:410.)
Bad-faith insurance litigation: In Boone v. Vanliner Insurance Co., 91 Ohio St.3d 209, 744 N.E.2d 154 (2001), dealing with allegations of bad-faith denial of insurance coverage, the Supreme Court held that, as to contested documents created prior to the denial of coverage, there was no work product prepared in anticipation of litigation "because at that point it has not yet been determined whether coverage exists," id. at 214, 744 N.E.2d at 158, but that work-product protection was available with respect to documents created after the denial of coverage, inasmuch as such documents could not bear on the bad-faith denial issue. Id. at 213, 744 N.E.2d at 158. (The attorney-client privilege aspect of the Boone decision is discussed in section 1.6:410.) Accord Garg v. State Auto. Mut. Ins. Co., 155 Ohio App. 3d 258, 2003 Ohio 5960, 800 N.E.2d 757 (Miami) (documents created after threat of litigation but before denial of claim "may contain attorney work product," but, under Boone, all such pre-denial material is discoverable. Id. at para. 23.). See Dennis v. State Farm Ins. Co., 143 Ohio App.3d 196, 757 N.E.2d 849 (Mahoning 2001) (order protecting insurer's claims adjuster from deposition by insured not justified on work-product grounds; although case was an insurance-coverage contract dispute not raising tort of bad-faith denial, "the issue of [insurer's] good faith or bad faith in denying coverage is certainly related to the subject matter of this action." Id. at 204, 757 N.E.2d at 856).
Public disclosure: In State ex rel. WLWT-TV5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997) (per curiam), a case involving the applicability of Public Records Act (ORC 143.49) exemptions to the prosecution's work-product and trial-preparation materials, the Supreme Court ruled that the numerous media reports on the investigation did not destroy the effectiveness of the exemptions: "Absent evidence that respondents have already disclosed the investigatory records to the public and thereby waived application of certain exemptions, the exemptions are fully applicable." Id. at 361, 673 N.E.2d at 1369-70. Accord State ex rel. Musial v. N. Olmsted, 106 Ohio St.3d 459, 2005 Ohio 5521, 835 N.E.2d 1243, at ¶ 37 (forwarding police investigatory records to ethics commission did not constitute waiver because such action "did not disclose these records to the general public").
In another case, the Supreme Court quoted the above language from Leis in holding that an overbroad request for "all records" encompassed records exempt under the Ohio Public Records Act and that this exemption was not forfeited by the city's earlier release of specified non-exempt police reports in response to a request by a local newspaper. State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001) (per curiam). [The precedential value of this opinion is questionable, however, given that only three justices joined in this aspect of the opinion, with four justices concurring in judgment only.] Compare State ex rel. Zuern v. Leis, 56 Ohio St.3d 20, 564 N.E.2d 81 (1990) (voluntary disclosure of records at issue, during discovery in related civil litigation, constituted waiver of claim of exemption under ORC 149.43).
Voluntary disclosure to government: There is at least one Ohio case addressing the waiver issue in the context of disclosure to the government. In In re Grand Jury, Nos. 93CA09, 93CA10 & 93 CA12, 1995 Ohio App. LEXIS 2567 (Washington June 1, 1995), the court assumed that a taped confession by a third party in the possession of the defendant's lawyer was protected work product, but that the protection no longer existed:
If a party from whom discovery is sought has disclosed such materials to third persons, including counsel representing interests adverse to such party from whom discovery is sought, the [work-product] privilege is destroyed as to such party. . . . It is undisputed in this case that Dunn [defendant's lawyer] played the tape recorded confession made by Elkins to the Washington County Prosecutor while attempting to strike a "deal" for his client. This amounted to a clear waiver of any protection from disclosure afforded to that tape by the "work-product" doctrine.
Id. at *49-50 (bracketed material added; O.Jur. 3d cites omitted). Compare Musial supra, where the police department's decision "to forward its investigative records to the city ethics commission for its administrative review did not waive or otherwise affect the uncharged-suspect exemption" under the Ohio Public Records Act, because waiver is triggered by disclosure to the public and there was no such disclosure here. 106 Ohio St.3d 459, 2005 Ohio 5521, 835 N.E.2d 1243, at ¶ 37.
For the somewhat more elaborate approach by federal courts to the work-product waiver issue see, e.g., Info. Res., Inc. v. Dun & Bradstreet Corp., 999 F. Supp. 591 (S.D.N.Y. 1998) (no waiver in sharing work-product with litigation ally; cases split on waiver where submission to government made under coercion; but waiver results from voluntary submission to government agency in order to persuade it to act against informant's adversary, as in case at bar).
Partial disclosure results in waiver: The rule that partial, voluntary disclosure of privileged attorney-client communication can result in loss of privilege for all other communications that deal with the same subject matter applies to partial disclosure of materials protected by the work-product doctrine as well. Mid-American Nat'l Bank & Trust Co. v. Cincinnati Ins. Co., 74 Ohio App.3d 481, 599 N.E.2d 699 (Wood 1991) (dictum; issue was privilege, not work product). But see the apparently contrary result under the Ohio Records Act in Icsman supra. (Compare, however, the result reached in the inadvertent-waiver context in Hawkins v. Anheuser-Busch, Inc., 2006 U.S. Dist. LEXIS 40461 (S.D. Ohio June 19, 2006), discussed at the end of this section.
But waiver of attorney-client privilege does not necessarily waive work-product immunity: As the federal district court case cited in Mid-American makes clear, a waiver of the privilege does not necessarily result in waiver of work-product immunity, because the attorney-client privilege is the client's to waive, whereas the work-product immunity is that of the attorney, and thus may be waived only by the attorney. See Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 156 (D. Del. 1977). The difference in waiver standards is also supported by the protection each provides. The attorney-client privilege protects the confidential nature of the lawyer-client communication. Once the communication is shared with a nonagent third party, confidentiality has been broken. The work-product doctrine, in contrast, exists to keep certain information from one's adversary. The range of disclosures that can be made while still honoring that concern is much broader.
In a contested election for the office of Attorney General of Ohio, the contestee (Fisher) moved for production from the contestor (Pfeifer) of certain notes taken by observers during the official ballot recount in Mahoning County. Pfeifer opposed the motion, arguing that the notes were protected as work product under OH Civ R 26(B)(3). The notes were prepared at the direction of counsel for Pfeifer and for counsel's use. Fisher argued that the work-product immunity had been waived because (1) the observers had disclosed the notes to Pfeifer's campaign manager and (2) the observers were deposed by Pfeifer and testified extensively on the subject covered by the notes. On these facts, Chief Justice Moyer held that the observers were acting as agents for Pfeifer's attorney; as a result, Fisher had to show "good cause" for production. But since Fisher argued waiver principles applicable to the attorney-client privilege, but not applicable to OH Civ R 26(B)(3), Fisher failed to carry his burden of showing good cause. "[A] waiver of the attorney-client privilege does not necessarily constitute a waiver of exemption under [OH Civ R 26(B)(3)]." In re Election of Nov. 6, 1990 for Office of Atty. Gen., 57 Ohio St.3d 614, 615, 567 N.E.2d 243, 244 (1991) (opinion in chambers by Moyer, C.J.). Accord Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 329, 612 N.E.2d 442, 447 (Montgomery 1992). [Query whether, on the facts presented, the In re Election result is the correct one. It would appear that the opinion mixes the apples of work-product protection (absence of good cause) with the oranges of waiver of that protection; the subsequent disclosure of the information at depositions by the attorney's agents arguably constitutes waiver of the work-product immunity of this information, irrespective of the absence of good cause. See section 1.6:760.]
Inadvertent disclosure of work-product material: The only case of which we are aware presenting this issue in the context of work-product information is Hawkins v. Anheuser-Busch, Inc., 2006 U.S. Dist. LEXIS 40461 (S.D. Ohio June 19, 2006). In Hawkins, the court held that the test for inadvertent disclosure of attorney-client privilege and work-product was the same, and concluded that, in the circumstances presented, there was no waiver of the work-product privilege. For further discussion of the inadvertent-waiver issue, see section 1.6:500.
Implied waiver - Placing prior litigation work product at issue in subsequent litigation: In insured's action against insurance agent for negligence, documents of the attorneys for insured employer and for its employee, prepared in connection with the employee's prior action against the insured, were protected by the work-product immunity from discovery by the insurance agent. Whether documents prepared for prior litigation are protected by the work-product doctrine must be determined on a case-by-case basis. The three elements to be considered are: (1) whether the work product prepared in anticipation of prior litigation is closely related to the present litigation; (2) whether permitting discovery in the subsequent case of work product from the prior case would result in a chilling effect on the performance of attorneys preparing for litigation; and (3) whether the past work product consists of material that is directly at issue in the present litigation. If the third factor (material directly at issue) is found to exist, this constitutes an implied waiver of the immunity and the material is discoverable, regardless of the other two factors. Frank W. Schaefer, Inc. v. C. Garfield Mitchell Agency, Inc., 82 Ohio App.3d 322, 334-35, 612 N.E.2d 442, 450 (Montgomery 1992) (utilizing the three-part test of Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wash. 1975); all three factors tilted toward protection -- cases "very closely related"; "might well be" chilling effect in such circumstances; and the past work product "was not directly at issue in this case, and therefore neither attorney should have been considered to have waived the protection of the work-product doctrine.").
Whether the Hearn approach will continue to be viable in Ohio, even as to work-product waiver, is unclear, given the Supreme Court's opinion in Jackson v. Greger, 110 Ohio St.3d 488, 2006 Ohio 4968, 854 N.E.2d 487. The court of appeals in Jackson (160 Ohio App.3d 258, 2005 Ohio 1588, 826 N.E.2d 900) had followed Schaefer and used the Hearn waiver analysis with respect to both attorney-client privilege and work-product issues. Although the Supreme Court reached the same result in affirming the court of appeals, it rejected the Hearn analysis for privilege purposes (see further discussion of Jackson on this point at section 1.6:530), and it made no mention of Hearn on the work-product issue. Rather than Hearn/waiver, the Court's work-product analysis was that Rule 26(B)(3) requires a showing of good cause to obtain discovery of trial preparation materials, and that the relevant-and-not-otherwise-available test had not been met by the defendant law firm with respect to its efforts to discover the files of the attorney who had represented Jackson in the prior civil rights litigation.
Introduction into evidence: Not surprisingly, introduction of work product into evidence waives the work-product protection. Since the doctrine provides a shield from having to disclose the material to an adversary, that shield is no longer relevant once the material is voluntarily disclosed, here by placing it in evidence. See generally United States v. Nobles, 422 U.S. 225, 236-40 (1975). Cf. State ex rel. Cincinnati Enquirer v. Hamilton County, 75 Ohio St.3d 374, 377, 662 N.E.2d 334, 337 (1996) (per curiam) (applying concept in Public Records Act case).
Document used to refresh witness's testimony: Plaintiff's counsel sought production of a document used by an assistant prosecutor to refresh his recollection as to the identity of participants at a meeting called to investigate allegations that one or more of the people present at the meeting had attempted to coerce a public official (defendant Cox, who had been the county coroner) into abusing his position by ceasing an investigation into the death of one of the patients of the present plaintiff, Kremer. The document was used by the prosecutor during his testimony at a hearing held during previous litigation brought by the present defendant, Cox, against Kremer. The trial court in the present action quashed the subpoena. On appeal, Kremer argued that OH R Evid 612 permitted him to examine a document used by an opposing witness to refresh his recollection. In rejecting this argument, the appellate court noted that the document in question was used to refresh the recollection of the witness, not in the present case, but in a prior lawsuit. The court further held that the document was protected by the privilege set forth in ORC 149.43(A)(2)(a), which exempts from disclosure confidential law-enforcement records that, if released, might disclose the identity of a suspect who has not been charged with a crime. Kremer v. Cox, 114 Ohio App.3d 41, 682 N.E.2d 1006 (Summit 1996).
Does the use of a document to refresh recollection in pending litigation operate to waive work-product protection (or the attorney-client privilege)? Ohio R Evid 612 provides:
Writing used to refresh memory
Except as otherwise provided in criminal proceedings by Rule 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh his memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
The Staff Notes to Rule 612 state that
Rule 612 vests discretion in the court to permit examination of a writing used to refresh recollection before testifying. This provision, together with the basic limitation of the rule which restricts examination to those situations where the writing is used to refresh recollection for the purpose of testifying, serves to avoid the rule being used as an additional method of discovery, particularly as to work product and pretrial preparation.
See State v. Cummings, 23 Ohio App.3d 40, 491 N.E.2d 354 (Cuyahoga 1985) (citing the Staff Report language in support of its decision affirming the trial court's denial of defendant's Rule 612 request to inspect a police officer's report that the officer reviewed prior to testifying). The Rule distinguishes between the seemingly absolute right to review the document when used to refresh recollection while the witness is testifying (OH R Evid 612(1)), and the trial court's discretion to allow production of a document reviewed prior to testifying, if "necessary in the interests of justice" (OH R Evid 612(2)).
According to Wright and Gold, most
federal courts now use a balancing test in determining whether a
privileged or work-product document used to refresh recollection must
be disclosed under Fed R Evid 612, the language of which is in
all material respects identical to the Ohio version. See 28
Charles A. Wright & Victor J. Gold, Federal Practice and
Procedure § 6188, at 488-90 (1993) & Supp. 2005, at
58-59 (setting forth the factors for and against production).
One of the factors listed by the commentators in favor of
work-product protection is "use of a writing to refresh memory
before rather than while testifying." Id. at 489.
The authors go on to note that a balancing test is difficult to
reconcile with the absolute right under Rule 612(1) to review
of the document when memory is refreshed while testifying. Id.
at 490-91. The House Judiciary Committee Report (H.R. Rep.
No. 650, 93d Cong., 1st Sess. (1973), reprinted in 1974 U.S.
Code Cong. & Ad. News 7075, 7086), states that "[t]he
Committee intends that nothing in the Rule be construed as barring
the assertion of a privilege with respect to writings used by a
witness to refresh his memory."
See Kracht v. Kracht, Nos. 70005, 70009, 1997 Ohio App. LEXIS 2412 (Cuyahoga June 5, 1997), where the court, rejecting defendant/lawyers' privilege argument with respect to affidavits by former employees of one of the lawyers, which affidavits implied that the lawyer had deliberately violated the civil rules, stated as follows: "Communications otherwise protected by the attorney-client privilege or work product doctrine are not protected if the communications are made in furtherance of crime, fraud, or other misconduct." Id. at *26.