Report of the Legal Ethics and Professional Conduct Committee

Report of the Legal Ethics and Professional Conduct Committee 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 To the Council of Delegates: The Legal Ethics and Professional Conduct Committee respectfully requests your favorable consideration, and approval, of the following proposal to amend R.C. 2317.02(A) to clarify when a lawyer may be compelled to testify regarding attorneyclient communications. Respectfully submitted, John J. Mueller, Cincinnati Chair 2317.02 Privileged communications. The following persons shall not testify in certain respects: (A)(1) An attorney, concerning a communication made to the attorney by a client in that relation or concerning 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 reveals the substance of attorney-client communications in a non-privileged context or is deemed by section 2151.421 of the Revised Code 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. (2) An attorney, concerning a communication made to the attorney by a client in that relationship or the attorney's advice to a client, except that if the client is an insurance company, the attorney may be compelled to testify, subject to an in camera inspection by a court, about communications made by the client to the attorney or by the attorney to the client that are related to the attorney's aiding or furthering an ongoing or future commission of bad faith by the client, if the party seeking disclosure of the communications has made a prima facie showing of bad faith, fraud, or criminal misconduct by the client. *** 29

35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 Summary of Current Ohio Law and Rationale for Proposal I. Review of the Application of R.C. 2317.02(A) in the Common Law and Determine Whether Amendment is Appropriate. A subcommittee of the Legal Ethics and Professional Conduct Committee was appointed to investigate issues relating to the nature and scope of the voluntary waiver of the attorney-client privilege arising from interpretations of the privilege statute by the Supreme Court of Ohio and other Ohio courts. The issue was brought to the attention of the Legal Ethics and Professional Conduct Committee by means of an article drafted by David B. Alden and Matthew P. Silverstein, Jones Day, appearing in the Cleveland State Law Review, Volume 59, Number 1, entitled Voluntary Client Testimony as a Privilege Waiver: is Ohio s Law Caught in a Time Warp? After reviewing the article and discussing its ramifications in current state and federal practice, the subcommittee met with Mr. Alden, the article s principal contributor, to discuss further his conclusions and recommendations. Our investigation led to the conclusion that an amendment to Ohio s attorney-client privilege statute in R.C. 2317.02(A) should be recommended to the OSBA Council of Delegates. II. Development of the Attorney-Client Privilege. Ohio codified the attorney-client privilege as an evidentiary statute protecting certain communications from compelled disclosure. Although the language of Ohio s privilege statute and Federal Rule of Evidence 502 differ, the policy behind the attorney-client privilege as reflected in Ohio s statute and federal rule is consistent. The attorney-client privilege exists to encourage full and frank communication between attorneys and their clients and thereby promote broader public interest in the observance of law and the administration of justice. Ohio ex. Rel. Toledo Blade Co. v. Toledo-Lucas Cnty. Port Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, 21, quoting Swidler & Berlin v. United States (1998), 524 U.S. 299, 403, 118 S.Ct. 2081. The intended consequence of the statutory privileges regarding attorney-client relationships as well as physician-patient and spousal relationships also codified in R.C. 2317.02, is that neither party to the relationship can be compelled to testify at trial, in deposition, or otherwise, about the nature and scope of the privileged communications. Additionally, neither a lawyer nor a client can be required to produce privileged communications in the discovery process or otherwise. The attorney-client privilege allows the client to disclose all relevant details to his or her attorney regarding the underlying facts and allows the attorney to discuss and advise the client frankly. III. Relationship between R.C. 2317.02(A) and the Voluntary Testimony Rule. An anomaly exists, however, in the common law development of the attorney-client privilege. The voluntary testimony rule provides that a client s voluntary testimony, even if no privileged communications are disclosed, waives the attorney-client privilege with respect to subjects addressed in the testimony. The voluntary testimony rule consequently permits the client or his or her attorney to be called to testify regarding the scope and 30

75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 nature of the communications between the attorney and the client. This rule is highly unusual in the United States; only Ohio and Wyoming have statutes encompassing this rule. In the middle of the twentieth century, five other states had privilege statutes similar to Ohio s North Dakota, Oklahoma, Oregon, South Dakota and Wyoming. Alden, Cleveland State Law Review, at 17. Since that time, four of those states enacted laws eliminating any waiver of the attorney-client privilege due to the client s voluntary testimony. Id. Ohio courts have interpreted the voluntary testimony rule in several contexts. The subcommittee s primary concern with the common law interpretation of the statute is that any voluntary testimony triggers a waiver of all attorney-client privileged communication even if the testimony has no relation to the nature or scope of the communications between the attorney and the client. Courts have consistently interpreted same subject to allow the client to be called to testify on all matters as to which the voluntarilytestifying privilege holder testified. In 1983, the Supreme Court of Ohio applied the voluntary testimony rule to uphold the trial court s decision to authorize cross-examination about attorney-client communications even though the witness revealed no privileged information or communication when testifying. Westervelt v. Rooker (1983), 4 Ohio St.3d 146. In Westervelt, the plaintiff testified at trial about the conditions surrounding the collision at issue. Over objection, defense counsel was permitted on cross-examination to ask the plaintiff about discussions he had with counsel during recess about the location of the collision. Id. at 148-49. The Court concluded that the trial court properly allowed the defendant s attorney to inquire about the conversation between the plaintiff and his attorney, holding: Previous pronouncements of this court have held that 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 facts of communications that have passed between them has not been referred to by such party in direct examination. Therefore, we conclude that the trial court properly permitted the cross-examination. Id. at 149 (emphasis added). Notably, this case was limited to the use of such evidence for impeachment purposes and did not involve any testimony by the attorney. Accord, Harco Corp. v. Corrpro Cos., 9th Dist. No. 1465, 1986 Ohio App. LEXIS 8925, *11-12. But, see contra, In re Estate of Irish, 8th Dist. No. 50735, 1986 Ohio App. LEXIS 7037, *4 (when the witness testifies involuntarily at the behest of the adverse party, he/she did not waive the corporation s privilege by voluntarily testifying on the same subject ). A. Whether Cross-Examination is Voluntary. The definition of voluntary was examined in Amer Cunningham Co., L.P.A. v. Cardiothoracic & Vascular Surgery of Akron, 9th Dist. No. 20899, 2002-Ohio-3986. The court was asked whether submitting to cross-examination in a deposition constituted voluntary testimony for the purpose of the voluntary-testimony rule. The appellate 31

116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 court held that whether testimony elicited on cross-examination is defined as voluntary for these purposes requires a court *** to consider the facts of the case before it, specifically the questions and answers from the deposition and then decide of the testimony concerning the relevant information was voluntary. Id. at 17. Merely submitting to cross-examination in a deposition could result in a waiver through voluntary testimony under R.C. 2317.02(A). Id. Other courts, however, have held that testimony given on cross-examination may not be voluntary testimony and accordingly does not constitute a waiver of the privilege under R.C. 2317.02. Cross-examination testimony is not voluntary as the client and his counsel do not have control of the questions or the information which is to be elicited. Carver v. Deerfield Twp. (2000), 139 Ohio App.3d 64, 77, quoting Tandon v. Tandon, 7th Dist. No. 99 JE 36, 1999 Ohio App. LEXIS 6416, *9. Note that this definition of voluntary does not apply to all cross-examination. If this court is presented with the proper circumstances, we will not hesitate to find a waiver of the attorney-client privilege despite the fact that the statements made by a client were on cross-examination. Tandon, *5-6. [W]aiver of the privilege will not be presumed from the fact that the client was called to testify as on cross-examination, because this is not considered to be voluntary testimony within the meaning of the statute. Woyczynski v. Wolf, (1983), 11 Ohio App.3d 226, 229, overruled on other grounds, Trussell v. Gen. Motors Corp. (1990), 53 Ohio St.3d 142, 146. Whether testimony in a deposition is voluntary depends on the questions and answers from the deposition. Air-Ride, Inc. v. DHL Express (USA), Inc., 12th Dist. No. CA2008-01-001, 2008-Ohio-5669, 17. See, e.g., Meyers, Roman, Friedberg & Lewis v. Malm, 183 Ohio App.3d 195, 2009-Ohio-2577, 59-60. B. Definition of Testimony. A corollary issue to whether testimony is voluntary is what behavior constitutes testimony. In Air-Ride, Inc. v. DHL Express (USA), Inc., the court considered whether an affidavit attached to a motion for summary judgment constituted testimony under the voluntary-testimony rule. 2008-Ohio-5669, 9-10. Complying with an order to compel, the defendant inadvertently produced an email containing attorney-client communication. The produced email contradicted an affidavit that the defendant had previously attached to a motion for summary judgment. The trial court denied the defendant s motion for the return of the produced e-mail based on its conclusion that, by attaching an affidavit that addressed the same subjects to a motion for summary judgment, the defendant had waived the attorney-client privilege under R.C 2317.02(A). The appellate court upheld the trial court s conclusion that the affidavit was testimony for the purposes of R.C. 2317.02(A). Quoting Jackson v. Greger, 110 Ohio St.3d 488, 2006-Ohio-4968, 7, fn. 1, the court noted that, [w]hile we recognize that the statute seems solely to refer to a prohibition on attorney testimony, the Supreme Court of Ohio has stated, R.C. 2317.02(A) provides a testimonial privilege i.e., it prevents an attorney from testifying concerning communications made by the attorney by a client or the attorney s advice to a client. A testimonial privilege applies not only to prohibit testimony at trial, but also to protect the sought after communications during the discovery process. The purpose of discovery is to acquire information for trial. Because a litigant s ultimate goal in the discovery process is to elicit pertinent information that might be used as 32

160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 testimony at trial, the discovery of attorney-client communications necessarily jeopardizes the testimonial privilege. Such privileges would be of little import were they not applicable during the discovery process. Air-Ride, at 8, fn. 4. IV. Proposal An amendment to R.C. 2317.02(A) would remedy the current anomaly in Ohio s attorney-client privilege statute. Ohio law has developed in a manner that impedes a reliable assessment of whether an attorney or client may be called to testify as to the nature and scope of their relationship. Alden, Cleveland State Law Review, at 22. This uncertainty in turn restricts the attorney s ability to provide the best legal advice to clients. [I]f the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. Upjohn Co. v. United States (1981), 449 U.S. 383, 393, 101 S.Ct. 677. If one party invokes the voluntary-testimony rule, such invocation would almost certainly cause the opposing counsel to invoke the same rule. This would result in a mutually assured destruction of the attorney-client privilege for both parties because all attorneys would have to testify about attorney-client communications. Alden, Cleveland State Law Review, at 18. The policy that the waiver through voluntary testimony rule was designed to further to reduce the risk that witness will commit perjury is already served in several other ways such as criminal penalties for perjury. Id. at 23. For criminal defendants in particular, the voluntary testimony rule creates a substantial tension between the right to testify on the one hand, and the right to counsel on another. Id. at 24. If the attorney-client privilege is to be fully preserved, some legislative action is necessary. A proposed solution to correct this anomaly is to modify the language of R.C. 2317.02(A) to provide clearly that voluntary testimony waives the attorney-client privilege only in situations where the testimony reveals the content of the privileged communication and to the extent that the waiver occurred. It appears that a remedy will not come through litigation, as the courts have recognized voluntary waiver. 33