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Court Says Statute Provides Only Basis for Waiver of Confidential Lawyer-Client Communications
2005-0905. Jackson v. Greger, 2006-Ohio-4968.
Montgomery App. No. 20693, 160 Ohio App.3d 258, 2005-Ohio-1588. Judgment affirmed.
Moyer, C.J., Resnick, Lundberg Stratton and O'Connor, JJ., concur.
Lanzinger, J., concurs in judgment only.
Pfeifer, J., concurs in part and dissents in part.
O'Donnell, J., dissents.
Opinion: http://www.supremecourtofohio.gov/rod/newpdf/0/2006/2006-Ohio-4968.pdf
(Oct. 11, 2006) The Supreme Court of Ohio held today that the only means by which a client can waive the confidentiality of privileged direct communications with his or her attorney are the means spelled out in R.C. 2317.02(A). The Court held further that, in order for a litigant to establish “good cause” to compel discovery of an opposing attorney's work product under Civil Rule 26(B)(3), the party seeking discovery must show that the materials sought are relevant to the current legal action and are not available from other sources.
The case involved Dayton attorney Lawrence Greger and a former client, Maudy Jackson of Kettering, whom Greger represented in a criminal case in 1999. In the course of that representation, Jackson accepted a plea bargain in which she entered a guilty plea to a misdemeanor charge of resisting arrest. In June 2001, attorney Kevin O'Brien of Columbus filed a federal civil rights action on behalf of Jackson seeking damages from Kettering for injuries Jackson alleged she had suffered at the hands of Kettering police officers in the course of her 1999 arrest. In April 2003, the U.S District Court for the Southern District of Ohio granted summary judgment in favor of Kettering, ruling that Jackson had waived any civil claims against the police for wrongful seizure or excessive force when she pleaded guilty to resisting arrest.
Jackson appealed the district court's ruling to the U.S. Sixth Circuit Court of Appeals. While that appeal was pending, attorney O'Brien assisted Jackson in reaching a settlement agreement with Kettering.
While the civil rights case was under appeal, attorney O'Brien also filed a malpractice suit on Jackson's behalf against Greger and his law firm in the Montgomery County Court of Common Pleas. In that suit, Jackson sought money damages for negligent representation based on allegations that Greger had advised her to plead guilty to resisting arrest despite being aware that she anticipated filing a civil rights claim against that city.
In his response to Jackson's malpractice complaint, Greger asserted that her claim against him was barred by law because it had not been filed within the one-year statute of limitations (time limit) after Jackson discovered, or reasonably should have discovered, that pleading guilty in the criminal case had impaired her ability to recover civil damages from Kettering. In preparing his defense, Greger filed a discovery motion demanding copies of file documents and communications between O'Brien and Jackson relating to her civil rights suit and the settlement she had obtained from Kettering.
Jackson and O'Brien refused to provide the requested materials, claiming they were protected from disclosure by lawyer-client privilege. Greger sought an order from the trial court compelling Jackson and O'Brien to disclose the requested materials. The trial judge granted the discovery order, ruling that Jackson had waived the confidentiality of lawyer/client communications in her civil rights case when she initiated a lawsuit against Greger based on his alleged impairment of her ability to pursue such a claim.
On review, the 2nd District Court of Appeals reversed the common pleas court and vacated its discovery order. The court of appeals ruled that Greger was not entitled to breach the confidentiality of Jackson's communications with O'Brien because Greger had not met all three parts of a test set by a 1975 federal case, Hearn v. Rhay, for determining when a party has implicitly waived lawyer/client privilege. The Supreme Court agreed to review the court of appeals ruling.
Writing for the majority in today's Supreme Court decision, Chief Justice Thomas J. Moyer affirmed the 2nd District's holdings that Jackson had not waived the confidentiality of her direct communications with O'Brien and that Greger was not entitled to the discovery order he was granted by the trial court. The decision disagreed, however, with the court of appeals' legal reasoning in arriving at those conclusions.
The Chief Justice wrote that, because Ohio has a specific statutory provision, R.C. 2317.02(A), setting forth the means by which the confidentiality of direct attorney/client communications may be waived, the court of appeals should have applied the statutory criteria rather than the three-part Hearn test to determine whether Jackson had waived privilege for her communications with O'Brien.
“R.C. 2317.02(A) clearly enumerates the means by which a client may waive the statutory attorney-client privilege: by express consent or by voluntarily testifying on the same subject. The facts of this case do not demonstrate that Jackson waived the privilege by either of those means,” wrote Moyer. “In reaching this holding, we are aware that several Ohio courts of appeals have applied the Hearn test. 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. … The General Assembly has chosen to limit the means by which a client's conduct may effect waiver of the attorney-client privilege. It is not the role of this court to supplant the legislature by amending that choice.”
On a second legal issue raised by Greger, regarding the discoverability of work product from O'Brien's files relating to Jackson's civil rights case, the Chief Justice said the applicable procedural rule, Civ.R.26(B)(3), states that discovery requests for an attorney's work product may be granted “only upon a showing of good cause therefor.” “We hold that a showing of good cause under Civ.R.26(B)(4) requires demonstration of need for the materials – i.e., a showing that the materials, or the information they contain, are relevant and otherwise unavailable,” wrote Chief Justice Moyer. In this case, he noted, Greger claimed that he needed to examine O'Brien's files in order to determine whether his alleged breach of a duty caused Jackson harm, whether Jackson had filed suit within one year of discovering her cause of action, and whether Jackson suffered any actual economic loss as a result of his alleged malpractice.
Pointing out alternative sources from which Greger could glean this information, the Chief Justice wrote that Greger had not demonstrated “good cause” and was therefore not entitled to the discovery order for O'Brien's work product granted to him by the trial court. The majority opinion was joined by Justices Alice Robie Resnick, Evelyn Lundberg Stratton and Maureen O'Connor.
Justice Judith Ann Lanzinger concurred in judgment only, and entered a separate opinion in which she disputed the majority's holding that R.C. 2317.03(A) sets forth the only means whereby a client can waive privilege for his or her direct communications with an attorney. Justice Lanzinger wrote that, in her view, the statutory provision cited by the majority bars only testimony by an attorney about client communications, and does not shield a client from the kinds of discovery demands asserted in this case.
Rather than relying on the statutory privilege, Justice Lanzinger wrote, the court of appeals properly applied a broader “common-law” theory of attorney-client privilege that has evolved through state and federal court decisions and “reaches far beyond a proscription against testimonial speech (and) protects against any dissemination of information obtained in the confidential relationship.” Under this common-law theory of privilege, she wrote, oral, written or recorded communications between attorney and client are shielded from disclosure unless the privilege is waived, and the widely applied three-part test in Hearn v. Rhay provides a useful tool for courts to determine when the voluntary actions of a client have placed privileged matters “at issue” in a lawsuit, and thus create an implied waiver of privilege.
Justice Paul E. Pfeifer entered a separate opinion concurring in part and dissenting in part from the majority opinion. Justice Pfeifer agreed with the majority holding that Jackson had not waived privilege, but disagreed that R.C.2317.02(A) provides the exclusive means for a client to make such a waiver. “Common law concepts of waiver should still apply to the privileges, and this court should adopt the Hearn test for the determination of implied waiver in attorney-client privilege cases,” wrote Justice Pfeifer. “As for the second proposition of law, I think it is a close question as to whether Greger showed good cause to discover the file materials of Jackson's attorney. Since it is a close question, I would side with the trial court's determination that the files are discoverable.”
Contacts
Joseph Borchelt, 513.455.4014, for
Lawrence Greger.
Kevin O'Brien, 614.224.3080, for Maudy Jackson.
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