Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. , 127 Ohio St. 3d 161 ( 2010 )

[Cite as Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 127 Ohio St. 3d 161,
2010-Ohio-4469.]
SQUIRE, SANDERS & DEMPSEY, L.L.P., APPELLANT, v. GIVAUDAN FLAVORS
CORPORATION, APPELLEE.
[Cite as Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp.,
127 Ohio St. 3d 161, 2010-Ohio-4469.]
Evidence — Discovery — Attorney-client privilege — R.C. 2317.02(A) — Self-
protection exception to privilege permits attorney to testify concerning
attorney-client communications when necessary to establish claim for
attorney fees or to defend against charge of malpractice or other
wrongdoing — Attorney work-product doctrine — Attorney work product
may be discovered if it is directly at issue, if need is compelling, and if
evidence cannot be obtained elsewhere.
(No. 2009-1321 — Submitted April 21, 2010 — Decided September 28, 2010.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 92366, 2009-Ohio-2490.
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SYLLABUS OF THE COURT
1. Ohio recognizes the common-law self-protection exception to the attorney-
client privilege, which permits an attorney to testify concerning attorney-
client communications where necessary to establish a claim for legal fees
on behalf of the attorney or to defend against a charge of malpractice or
other wrongdoing in litigation between the attorney and the client.
2. Attorney work product, including but not limited to mental impressions,
theories, and legal conclusions, may be discovered upon a showing of
good cause if it is directly at issue in the case, the need for the information
is compelling, and the evidence cannot be obtained elsewhere.
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SUPREME COURT OF OHIO
O’DONNELL, J.
{¶ 1} Squire, Sanders & Dempsey, L.L.P., appeals from a judgment of
the Eighth District Court of Appeals reversing a discovery order that had
compelled Givaudan Flavors Corporation to produce documents related to Squire
Sanders’ representation of Givaudan and that had directed Givaudan’s former and
current general counsel to testify regarding attorney-client communications in
connection with litigation over the amount of Squire Sanders’ legal fees and the
adequacy of the legal services it rendered.
{¶ 2} The issue in this case is whether the common-law self-protection
exception to the attorney-client privilege, permitting an attorney to reveal
attorney-client communications when necessary to establish a claim or defense on
the behalf of the attorney, applies as an exception to R.C. 2317.02(A), which
provides 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.”
{¶ 3} Ohio recognizes other common-law exceptions to the attorney-
client privilege. For example, as detailed below, Ohio recognizes the crime-fraud
exception to prevent concealment of attorney or client wrongdoing. Similarly, in
this case, recognition of the common-law self-protection exception to the
attorney-client privilege as part of Ohio law aids the administration of justice and
is supported by decisions of other jurisdictions addressing this issue.
{¶ 4} Pursuant to the common-law self-protection exception to the
attorney-client privilege, an attorney should be permitted to testify concerning
attorney-client communications where necessary to collect a legal fee or to defend
against a charge of malpractice or other wrongdoing in litigation against a client
or former client. Ohio recognizes this exception. As a result, we reverse the
judgment of the court of appeals and remand the cause for further proceedings
consistent with this opinion.
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Facts and Procedural History
{¶ 5} In 2003, the law firm of Squire, Sanders & Dempsey, L.L.P.,
began to represent Givaudan Flavors Corporation in connection with litigation
filed by employees and others who allegedly became ill after inhaling the butter
flavoring that Givaudan produced for use on popcorn. At that time, Frederick
King, then Givaudan’s vice president for legal affairs, selected Squire Sanders to
handle the litigation and generally approved payment of invoices submitted by the
firm.
{¶ 6} In January 2007, Givaudan replaced King with Jane Garfinkel,
naming her senior vice president and general counsel. She determined that the
litigation attorneys defending the “butter flavor” litigation lacked sufficient
qualification, experience, or expertise in pulmonary toxic tort litigation, and she
thought that Squire Sanders had inadequately handled the defense, prolonging the
litigation and generating excessive legal fees. Her deposition testimony revealed
that she decided not to submit Squire Sanders’ invoices for payment out of her
concern that they showed a pattern of dishonesty, inaccuracy, and incompleteness.
In May 2007, she terminated Squire Sanders without paying any of the
outstanding invoices for legal services rendered by Squire Sanders.
{¶ 7} Squire Sanders filed this action for breach of contract and money
due on account, alleging that Givaudan owed $1,801,204.37 in legal fees as a
result of work it had performed up to the date of its termination. Givaudan denied
liability and counterclaimed for breach of contract, legal malpractice, breach of
fiduciary duty, fraud, and unjust enrichment. It asserted that Squire Sanders had
charged unreasonable, excessive, and unnecessary legal fees while failing to
provide competent and adequate legal services.
{¶ 8} Through discovery, Squire Sanders sought production of
documents related to its representation of Givaudan, including its budgeting and
staffing of the litigation, trial strategy, handling of witnesses, and Givaudan’s
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allegation that it failed to pursue opportunities for settlement; it also requested
documents concerning Givaudan’s decision to terminate its representation.
Givaudan objected, asserting that the law firm sought documents protected by the
attorney-client privilege and the work-product doctrine.
{¶ 9} Further, when Squire Sanders deposed King and Garfinkel,
Givaudan asserted attorney-client privilege and the work-product doctrine to
prevent either King or Garfinkel from answering questions. Givaudan objected
when counsel for Squire Sanders asked King about the firm’s staffing of the case,
the resources the firm committed to the litigation, the strategy it pursued in
defending Givaudan, and the adequacy of the firm’s trial preparation. Givaudan
similarly asserted attorney-client privilege to prohibit Garfinkel from answering
questions about how she had formed her view that the Squire Sanders litigation
team lacked qualified leadership and experienced attorneys, that it had
inadequately prepared for trial and performed unauthorized work, and that
Givaudan should retain different outside counsel. Givaudan further invoked the
attorney-client privilege and the work-product doctrine to prevent Squire Sanders
from having an independent expert review its billing invoices and other
documents in its effort to establish the reasonable value of the legal services it
rendered to Givaudan.
{¶ 10} Squire Sanders moved to compel the production of documents and
testimony from both King and Garfinkel, relying on the self-protection exception
to the attorney-client privilege and the work-product doctrine. The trial court
granted the motion, compelling Givaudan to produce the documents that Squire
Sanders had requested and directing King and Garfinkel to answer questions
related to the Givaudan/Squire Sanders relationship. The court also permitted
Squire Sanders to use documents already in its possession relative to the billing
dispute.
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{¶ 11} Givaudan appealed the trial court’s discovery order to the Eighth
District Court of Appeals. The appellate court reversed the trial court, holding
that R.C. 2317.02(A) provides the exclusive means for a client to waive the
attorney-client privilege for testimonial statements and that the implied waiver
test articulated in Hearn v. Rhay (E.D.Wash.1975), 68 F.R.D. 574, applies to
nontestimonial statements. The appellate court concluded that the trial court
should not have granted the motion to compel without conducting an evidentiary
hearing or an in camera review to determine whether the attorney-client privilege
or the work-product doctrine applied and whether Givaudan had expressly or
impliedly waived either or both. Squire, Sanders & Dempsey, L.L.P. v. Givaudan
Flavors Corp., Cuyahoga App. No. 92366, 2009-Ohio-2490.
{¶ 12} Squire Sanders appealed that decision to this court, contending that
the common-law self-protection exception to the attorney-client privilege is
recognized both in American jurisprudence and in Ohio law and is incorporated
into the attorney-client privilege codified in R.C. 2317.02(A). According to
Squire Sanders, when the exception applies, there is no privilege for the client to
assert or waive, and the “good cause” requirement for obtaining attorney work
product is satisfied. It also contends that the court of appeals erred in relying on
cases dealing with waiver of the attorney-client privilege, which would be
relevant only if no exception applied. And it further asserts that the trial court
correctly concluded that the communications it sought fell outside the attorney-
client privilege and the work-product doctrine.
{¶ 13} By contrast, Givaudan argues that the attorney-client privilege
provided in R.C. 2317.02(A) is unambiguous and does not create an exception for
attorney self-protection. It notes that this court has consistently rejected judicially
created waivers, exceptions, and limitations of statutorily created testimonial
privileges. Further, Givaudan maintains that R.C. 2317.02(A) could not have
incorporated the common-law self-protection exception because this court never
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recognized it at common law and has reversed the only Ohio appellate court cited
by Squire Sanders to do so, Keck v. Bode (1902), 13 Ohio Cir. Dec. 413, 1902 WL
868, reversed without opinion by Bode v. Keck (1903), 69 Ohio St. 549, 70 N.E.
1115. In the alternative, Givaudan urges the court to uphold the Eighth District’s
decision to remand the case to the trial court for a hearing or in camera review of
the disputed evidence to determine whether it actually falls within the self-
protection exception.
{¶ 14} Separately, Givaudan in its argument requests this court to stay the
fee-dispute lawsuit until the butter-flavoring litigation has concluded, because
revealing its confidences would jeopardize its defense in that case. However, the
court of appeals upheld the trial court’s denial of a stay on the grounds that the
denial was not a final appealable order and that the trial court’s order did not
constitute an abuse of discretion. Givaudan did not cross-appeal to challenge the
court of appeals’ decision in this regard and therefore this issue is not before us
for review. See Kostelnik v. Helper, 96 Ohio St. 3d 1, 2002-Ohio-2985, 770
N.E.2d 58, ¶ 14; Presley v. Norwood (1973), 36 Ohio St. 2d 29, 34, 65 O.O.2d
129, 303 N.E.2d 81.
{¶ 15} Thus, the central issue in this case is whether Ohio recognizes the
self-protection exception to the attorney-client privilege permitting an attorney to
testify concerning attorney-client communications to establish a claim or defense
on behalf of the attorney in connection with litigation against a client or a former
client.
The Attorney-Client Privilege
{¶ 16} “The attorney-client privilege is one of the oldest recognized
privileges for confidential communications.” Swidler & Berlin v. United States
(1998), 524 U.S. 399, 403, 118 S. Ct. 2081, 141 L. Ed. 2d 379. As we explained in
State ex rel. Leslie v. Ohio Hous. Fin. Agency, 105 Ohio St. 3d 261, 2005-Ohio-
1508, 824 N.E.2d 990, “ ‘Its purpose is to encourage full and frank
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communication between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of justice. The
privilege recognizes that sound legal advice or advocacy serves the public ends
and that such advice or advocacy depends upon the lawyer’s being fully informed
by the client.’ Upjohn Co. v. United States (1981), 449 U.S. 383, 389, 101 S. Ct.
677, 66 L. Ed. 2d 584; Cargotec, Inc. v. Westchester Fire Ins. Co., 155 Ohio
App.3d 653, 2003-Ohio-7257, 802 N.E.2d 732, ¶ 7. ‘[B]y protecting client
communications designed to obtain legal advice or assistance, the client will be
more candid and will disclose all relevant information to his attorney, even
potentially damaging and embarrassing facts.’ (Footnote omitted.) 1 Rice,
Attorney-Client Privilege in the United States (2d Ed.1999) 14-15, Section 2.3.”
Leslie at ¶ 20.
{¶ 17} Evid.R. 501 provides that “[t]he privilege of a witness, person,
state or political subdivision thereof shall be governed by statute enacted by the
General Assembly or by principles of common law as interpreted by the courts of
this state in the light of reason and experience.” Thus, “[i]n 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.” Leslie, 105 Ohio St. 3d 261,
2005-Ohio-1508, 824 N.E.2d 990, ¶ 18.
Codification of the Privilege
{¶ 18} In Jackson v. Greger, 110 Ohio St. 3d 488, 2006-Ohio-4968, 854
N.E.2d 487, the court stated, “R.C. 2317.02(A) provides a testimonial privilege —
i.e., it prevents an attorney from testifying concerning communications made to
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.” Id. at ¶ 7, fn. 1.
{¶ 19} Central to the issue in this case is R.C. 2317.02(A):
{¶ 20} “The following persons shall not testify in certain respects:
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{¶ 21} “(A)(1) An attorney, 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 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.
{¶ 22} “* * *
{¶ 23} “(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.”
Exceptions to the Attorney-Client Privilege
{¶ 24} We have previously recognized several exceptions to the attorney-
client privilege codified by R.C. 2317.02(A) notwithstanding their absence from
the statutory text.
Cooperation with Wrongdoing (Crime-Fraud) Exception
{¶ 25} In Lemley v. Kaiser (1983), 6 Ohio St. 3d 258, 266, 6 OBR 324,
452 N.E.2d 1304, the court explained that the attorney-client privilege may not be
asserted to conceal the attorney’s cooperation with the client’s wrongdoing. In
that case, Bobby Lee Nash Sr. and Tammy L. Lemley relinquished their infant
child to two attorneys to facilitate the private placement of the child for adoption
with an unidentified prospective adoptive parent. However, Nash and Lemley
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changed their minds and sought the return of the child, but the attorneys refused
to assist them. Lemley then filed a complaint in the trial court seeking the writ of
habeas corpus on behalf of the child. At a hearing, the attorneys invoked the
attorney-client privilege and refused to reveal the name and address of the person
or persons who had the child. The trial court issued the writ, commanding the
attorneys to either return the child or reveal his location, and the court of appeals
affirmed. On the attorneys’ appeal, this court affirmed, holding that the names
and addresses of the attorneys’ alleged clients were not entitled to the cloak of
protection afforded by the attorney-client privilege.
{¶ 26} Writing for the court, Justice Resnick explained that “[t]he record
* * * is abundantly clear that the private, independent, and surreptitious placement
of the minor child in the instant case was only accomplished through a total
derogation of the law.” Id. at 259. After acknowledging that the General
Assembly had codified the common-law attorney-client privilege in R.C. 2317.02,
the court noted that “the attorney-client privilege only exists to aid in the
administration of justice.” Id at 264. Therefore, the court, adopting the reasoning
of the court in Tierney v. Flower (1969), 32 A.D.2d 392, 302 N.Y.S.2d 640,
stated: “ ‘The seal of secrecy between attorney and client is to be preserved “in
the aid of a public purpose to expose wrongdoing and not * * * to conceal
wrongdoing.” * * * “[T]he veil [of privilege is removed] from the client's name
when the attorney's assertion of a privilege is a cover for cooperation in
wrongdoing.” ’ ” (Brackets and ellipses sic.) Lemley at 266, quoting Tierney at
395-396 and Matter of Kaplan (Blumenfeld) (1960), 8 N.Y.2d 214, 218, 203
N.Y.S.2d 836, 168 N.E.2d 660. The court therefore held that the attorney-client
privilege did not protect the names and addresses of the prospective adoptive
parents and affirmed the issuance of the writ against the attorneys.
{¶ 27} In Moskovitz v. Mt. Sinai Med. Ctr. (1994), 69 Ohio St. 3d 638, 635
N.E.2d 331, we relied on Lemley in recognizing the crime-fraud exception as a
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part of the common law of Ohio. There, we stated that “it is beyond contradiction
that the 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. Advice sought and rendered in this regard is not worthy of protection,
and the principles upon which the attorney-client privilege is founded do not
dictate otherwise.” Id. at 661.
{¶ 28} We again discussed the crime-fraud exception in State ex rel. Nix
v. Cleveland (1998), 83 Ohio St. 3d 379, 383, 700 N.E.2d 12, in which we
confronted the question of whether a public-records request could be refused on
the basis that the attorney-client privilege protected communications between the
Cleveland Law Department and city officials allegedly engaged in a conspiracy to
wrongfully indict John H. Nix for fraud. There, the case required consideration of
whether an exception to the attorney-client privilege applied. We recognized that
“[a] communication is excepted from the attorney-client privilege if it is
undertaken for the purpose of committing or continuing a crime or fraud.” Id. at
383. However, we explained that “[a] party invoking the crime-fraud exception
must demonstrate that there is a factual basis for a showing of probable cause to
believe that a crime or fraud has been committed and that the communications
were in furtherance of the crime or fraud.” Id. at 384. We held that Nix had
failed to satisfy that burden. Id.
Lack-of-Good-Faith Exception
{¶ 29} The court discussed a second type of exception to the attorney-
client privilege in Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635
N.E.2d 331. In that case, Margaret Moskovitz died after her physician, who had
altered records to conceal his malpractice, failed to timely diagnose a malignant
tumor in her leg. Her estate sued her medical providers for medical malpractice.
The court of appeals upheld the finding of liability against the physician and the
denial of prejudgment interest but reversed the award of compensatory damages
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as excessive and the award of punitive damages as prohibited entirely. On the
estate’s appeal to this court, we considered, among other issues, whether the
medical providers had failed to make a good-faith effort to settle the claim such
that prejudgment interest should have been allowed pursuant to R.C. 1343.03.
Resolving that question turned on the applicability of the attorney-client privilege
to “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).” Id. at
661.
{¶ 30} Because the attorney-client privilege does not apply when the
client seeks to abuse the attorney-client relationship, the court in Moskovitz held
that “[d]ocuments 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, and that “[i]n an R.C.
1343.03(C) proceeding for prejudgment interest, neither the attorney-client
privilege nor the so-called work product exception precludes discovery of an
insurer's claims file. The only privileged matters contained in the file are those
that go directly to the theory of defense of the underlying case in which the
decision or verdict has been rendered.” Id. at paragraph three of the syllabus.
{¶ 31} In Boone v. Vanliner Ins. Co. (2001), 91 Ohio St. 3d 209, 212, 744
N.E.2d 154, the court extended the exception recognized in Moskovitz to
attorney-client communications furthering an insurance company’s lack of good
faith in denying coverage, holding such communications to be “unworthy of
protection” by the attorney-client privilege. We explained that “the rationale
behind our holding in Moskovitz is applicable to actions alleging bad faith denial
of coverage. That is, claims file materials that show an insurer's lack of good
faith in denying coverage are unworthy of protection.” Id. at 213. However, the
court, defining the scope of that exception, explained that “the only attorney-
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client and work-product documents that would contain information related to the
bad faith claim, and, thus, be unworthy of protection, would have been created
prior to the denial of coverage.” Id.
Joint-Representation Exception
{¶ 32} In addition, Ohio courts have applied the common-law joint-
representation exception to the attorney-client privilege, which provides that a
client of an attorney cannot invoke the privilege in litigation against a co-client.
See, e.g., Emley v. Selepchak (1945), 76 Ohio App. 257, 262, 31 Ohio Op. 558, 63
N.E.2d 919, quoting 8 Wigmore on Evidence (3d Ed.1940), Section 2312
(“Another exception * * * is ‘when the same attorney acts for two parties having
a common interest, and each party communicates with him. Here the
communications are clearly privileged from disclosure at the instance of a third
person. Yet they are not privileged in a controversy between the two original
parties, inasmuch as the common interest and employment forbade concealment
by either from the other * * *.’ ” [Emphasis sic]); Netzley v. Nationwide Mut. Ins.
Co. (1971), 34 Ohio App. 2d 65, 78, 63 O.O.2d 127, 296 N.E.2d 550 (following
Emley); see also Weissenberger’s Ohio Evidence Treatise (2009) 246-247,
Section 501.8 (“A similar exception applies when an action arises between parties
who were previously co-clients within an attorney-client relationship”).
{¶ 33} Although the crime-fraud, lack-of-good-faith, and joint-
representation exceptions to the attorney-client privilege are not expressly
codified in R.C. 2317.02(A), they nonetheless “exist within the body of common-
law principles governing privilege.” Weissenberger’s Ohio Evidence at 246
(noting the crime-fraud, fee-dispute, malpractice, and co-client exceptions); see
also 1 Giannelli & Snyder, Evidence (2d Ed.2001) 342, Section 501.14
(“Although the statute is silent, there are several well-recognized exceptions to the
attorney-client privilege”). These exceptions define the scope of the protections
afforded to attorney-client communications by R.C. 2317.02(A), because, as the
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court explained in Moskovitz, “the privilege does not attach” when an exception
applies. 69 Ohio St. 3d at 661, 635 N.E.2d 331.
The Self-Protection Exception
{¶ 34} At common-law, “[a]n exception to the attorney-client privilege
permits an attorney to reveal otherwise protected confidences when necessary to
protect his own interest.” Levine, Self-Interest or Self-Defense: Lawyer
Disregard of the Attorney-Client Privilege for Profit and Protection (1977), 5
Hofstra L.Rev. 783. This exception provides that “when an attorney becomes
involved in a legal controversy with a client or former client, the attorney may
reveal any confidences necessary to defend himself or herself or to vindicate his
or her rights with regard to the disputed issues.” 1 Stone & Taylor, Testimonial
Privileges (2d Ed.1995) 1-177, Section 1.66. See also Mitchell v. Bromberger
(1866), 2 Nev. 345; 1 McCormick on Evidence (6th Ed.2006) 414, Section 91.1.
{¶ 35} The self-protection exception dates back over 150 years to its
articulation by Justice Selden in Rochester City Bank v. Suydam, Sage & Co.
(N.Y.Sup.Ct.1851), 5 How. Pr. 254, 262. There he wrote “Where the attorney or
counsel has an interest in the facts communicated to him, and when their
disclosure becomes necessary to protect his own personal rights, he must of
necessity and in reason be exempted from the obligation of secresy [sic].”
(Emphasis added in part.)
{¶ 36} Since that time, this exception has become firmly rooted in
American jurisprudence. The Supreme Court of the United States recognized it in
1888 in Hunt v. Blackburn (1888), 128 U.S. 464, 470-471, 9 S. Ct. 125, 32 L. Ed.
488, and courts and commentators have accepted the self-protection exception as
black-letter law defining which communications are subject to the attorney-client
privilege. See generally Levine, 5 Hofstra L.Rev. 783; see also Nave v. Baird
(1859), 12 Ind. 318; Mitchell v. Bromberger, 2 Nev. 345; Koeber v. Somers
(1901), 108 Wis. 497, 84 N.W. 991, 994; 8 Wigmore on Evidence (McNaughton
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Rev.Ed.1961) 607-608, Section 2312; 2 Mechem, Treatise on the Law of Agency
(2d Ed.1914) 1900, Section 2313; 1 McCormick on Evidence at 414, Section
91.1; Wolfram, Modern Legal Ethics (1986) 307, Section 6.7.8; 3 Weinstein’s
Federal Evidence (2d Ed.2007) 503-101, Section 503.33; Sedler & Simeone, The
Realities of Attorney-Client Confidences (1963), 24 Ohio St.L.J. 1, 53;
Restatement (Third) of the Law Governing Lawyers (2000), Section 83.
{¶ 37} Notably, Ohio courts, including this court, have recognized the
self-protection exception. In Estate of Butler (App.1939), 32 Ohio Law. Abs. 1,
1939 WL 3319, the beneficiaries of the estate of Henry V. Butler challenged the
administrator’s payment of legal fees to Butler’s attorney, Grover C. Brown. The
probate court struck Brown’s testimony regarding the services he had rendered to
Butler as privileged pursuant to G.C. 11494, the predecessor to R.C. 2317.02(A).
The court of appeals reversed, holding that “an attorney in matters pertaining to
his interest has a right to testify and is not precluded from doing so by virtue of
[G.C.] 11494 * * *. The rule is very broad which permits testimony of an
attorney in support of his claim for fees.” Id. at *15.
{¶ 38} We affirmed that decision, explaining that “[s]ince the
administrator was charged with maladministration in the allowance and payment
of Brown's claim against the estate, the defense of the administrator was
dependent upon establishing the correctness of the claim by showing the amount
and value of the services which Brown had rendered to Butler. The administrator
was certainly entitled to such evidence in his defense and was entitled to have
Brown, necessarily a very important witness, testify on this subject.” In re
Butler's Estate (1940), 137 Ohio St. 96, 114, 17 Ohio Op. 432, 28 N.E.2d 186.
{¶ 39} We noted that Brown had not been disqualified from testifying as a
creditor because his claim against the estate had been paid, and we continued:
“Nor should the testimony of Brown have been wholly excluded on the ground
that he had been counsel and attorney for Butler. Brown was at least a competent
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witness to testify to any matters upon which he did testify, relating to the services
he had performed, to documentary evidence covering transactions handled for
Butler, to communications made to him by Butler in the presence of third persons,
and to other matters which are excepted from the operation of the exclusionary
provisions of Section 11494, General Code.” In re Butler's Estate, 137 Ohio St.
at 114, 17 Ohio Op. 432, 28 N.E.2d 186. Notably, when the General Assembly
recodified G.C. 11494 at R.C. 2317.02, it did not supersede that holding.
{¶ 40} Thus, our caselaw recognizes that the attorney-client privilege does
not prevent an attorney from testifying to the correctness, amount, and value of
the legal services rendered to the client in an action calling those fees into
question. In re Butler's Estate, 137 Ohio St. at 114, 28 N.E.2d 186; see also 1
Giannelli & Snyder, Evidence, at 342 (“The privilege also does not apply in an
action by an attorney against the client for the collection of legal fees”);
Weissenberger’s Ohio Evidence at 246 (“Nor does privilege attach in actions
between the attorney and client, as in a fee dispute”).
{¶ 41} Further, the self-protection exception to the attorney-client
privilege permitting the attorney to testify also applies when the client puts the
representation at issue by charging the attorney with a breach of duty or other
wrongdoing. Weissenberger’s Ohio Evidence, id.; 1 Giannelli & Snyder,
Evidence, at 342. Courts recognize that “ ‘[t]he attorney-client privilege cannot at
once be used as a shield and a sword.’ ” In re Lott (C.A.6, 2005), 424 F.3d 446,
454, quoting United States v. Bilzerian (C.A.2, 1991), 926 F.2d 1285, 1292.
Thus, a client may not rely on attorney-client communications to establish a claim
against the attorney while asserting the attorney-client privilege to prevent the
attorney from rebutting that claim.
{¶ 42} Rather, “the attorney-client privilege exists to aid in the
administration of justice and must yield in circumstances where justice so
requires,” Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d at 661, 635 N.E.2d
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331. The same considerations of justice and fairness that undergird the attorney
client privilege prevent a client from employing it in litigation against a lawyer to
the lawyer’s disadvantage. Wolfram, Modern Legal Ethics (1986) 308, Section
6.7.8; Wright & Miller, Federal Practice & Procedure (1997, Supp.2010), Section
5503; Restatement (Third) of the Law Governing Lawyers, Section 83, Comment
b.
{¶ 43} Thus, courts apply the exception because “[i]t would be a manifest
injustice to allow the client to take advantage of [the attorney-client privilege] to
the prejudice of his attorney * * * [or] to the extent of depriving the attorney of
the means of obtaining or defending his own rights.” Mitchell v. Bromberger, 2
Nev. 345; see also Doe v. A Corp. (C.A.5, 1983), 709 F.2d 1043, 1048-1049;
Daughtry v. Cobb (1939), 189 Ga. 113, 118, 5 S.E.2d 352; Stern v. Daniel (1907),
47 Wash. 96, 98, 91 P. 552; Koeber v. Somers, 84 N.W. at 995.
{¶ 44} Givaudan, however, relies on Jackson v. Greger, 110 Ohio St. 3d
488, 2006-Ohio-4968, 854 N.E.2d 487, ¶ 13, for the proposition that this court has
“consistently rejected the adoption of judicially created waivers, exceptions, and
limitations for testimonial privilege statutes.” Jackson dealt with the question of
whether to recognize the doctrine of implied waiver of the attorney-client
privilege as articulated in Hearn v. Rhay, 68 F.R.D. 574. Applying State v.
McDermott (1995), 72 Ohio St. 3d 570, 651 N.E.2d 985, the court explained that
R.C. 2317.02(A) provides the exclusive means by which privileged
communications directly between an attorney and a client can be waived.
Jackson at ¶ 11. Jackson is distinguishable on its facts because it dealt only with
a waiver of the attorney-client privilege; we concern ourselves in the instant case
with a common-law exception to the privilege, the self-protection exception.
{¶ 45} In addition, we rejected the same argument Givaudan presents in
Boone v. Vanliner Ins. Co., 91 Ohio St. 3d 209, 744 N.E.2d 154. Vanliner relied
on McDermott’s statement that R.C. 2317.02(A) provides the exclusive means for
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waiving the attorney-client privilege. Id. at 213. We disagreed. Justice Douglas,
writing for the majority, stated: “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.” (Emphasis sic.) Id.
{¶ 46} Moreover, Givaudan’s argument runs counter to our caselaw,
which recognizes exceptions to the attorney-client privilege. As Professor
Weissenberger noted, “[i]f one reads McDermott literally, then the crime-fraud,
fee dispute, malpractice, co-client, and other public policy exceptions are invalid
judicial augmentations of the statutory privilege, and have no effect.”
Weissenberger’s Ohio Evidence at 247, Section 501.8. But our cases do
recognize these exceptions. See Boone, 91 Ohio St. 3d at 213, 744 N.E.2d 154
(lack of good faith); Nix, 83 Ohio St. 3d at 383, 700 N.E.2d 12 (crime-fraud);
Moskovitz, 69 Ohio St. 3d at 661-663, 635 N.E.2d 331 (crime-fraud and lack of
good faith); Lemley, 6 Ohio St. 3d at 266, 6 OBR 324, 452 N.E.2d 1304
(cooperation in wrongdoing).
{¶ 47} In deciding Jackson and McDermott, we did not cast aside the
well-established common-law exceptions to the attorney-client privilege. Unlike
waiver, which involves the client’s relinquishment of the protections of R.C.
2713.02(A) once they have attached, an exception to the attorney-client privilege
falls into the category of situations in which the privilege does not attach to the
communications in the first instance and is therefore excluded from the operation
of the statute. See Ross v. Abercrombie & Fitch Co. (Apr. 22, 2008), S.D.Ohio
Nos. 2:05-cv-0819 et seq., 2008 WL 1844357, * 1 (“Logically, the first issue to
be addressed in any case where one party claims that any applicable privileges
have been waived is whether the privileges attach to the requested documents in
the first instance”); Moskovitz, 69 Ohio St. 3d at 661, 635 N.E.2d 331 (“the
privilege does not attach in a situation where the advice sought by the client and
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conveyed by the attorney relates to some future unlawful or fraudulent
transaction”); Restatement (Third) of the Law Governing Lawyers, Chapter 5,
Topic 2, Title C, Introductory Note (distinguishing between waivers of the
privilege and exceptions to it); Black’s Law Dictionary (9th Ed.2009) 644
(defining “exception”); id. at 1717 (defining “waiver”). In line with this analysis,
Givaudan’s reliance on Jackson is misplaced because Ohio recognizes common-
law exceptions to the privilege as outlined above.
{¶ 48} And as discussed, Ohio recognizes the common-law self-protection
exception to the attorney-client privilege, which permits an attorney to testify
concerning attorney-client communications where necessary to establish a claim
for legal fees on behalf of the attorney or to defend against a charge of
malpractice or other wrongdoing in litigation between the attorney and the client.
{¶ 49} Our decision today also comports with Prof.Cond.R. 1.6(b)(5),
which provides:
{¶ 50} “A lawyer may reveal information relating to the representation of
a client, including information protected by the attorney-client privilege under
applicable law, to the extent the lawyer reasonably believes necessary * * *
{¶ 51} “(5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client * * *.” (Emphasis sic.)
{¶ 52} Further, Comment [10] to Prof.Cond.R. 1.6 explains that an
attorney has a right to respond to the allegations of a client in a lawsuit that the
attorney committed a wrong against the client. Comment [11] also specifies that
an attorney may prove the legal services rendered to a client in an action to collect
a fee, noting that this aspect of Prof.Cond.R. 1.6(b) “expresses the principle that
the beneficiary of a fiduciary relationship may not exploit it to the detriment of
the fiduciary.”
{¶ 53} Ohio recognizes the self-protection exception to the attorney-client
privilege and that exception applies in this situation. Therefore, R.C. 2317.02(A)
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does not prevent an attorney from responding to allegations that the attorney
wronged a client or from establishing the reasonable value of the legal services
rendered to a client to the extent that such evidence is necessary to establish a
claim or defense on behalf of the attorney in litigation between the attorney and
the client.
The Work-Product Doctrine
{¶ 54} The work-product doctrine emanates from Hickman v. Taylor
(1947), 329 U.S. 495, 511, 67 S. Ct. 385, 91 L. Ed. 451, in which the Supreme
Court of the United States recognized that “[p]roper preparation of a client's case
demands that [the attorney] assemble information, sift what he considers to be the
relevant from the irrelevant facts, prepare his legal theories and plan his strategy
without undue and needless interference. * * * This work is reflected, of course,
in interviews, statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other tangible and intangible ways –
aptly though roughly termed by the Circuit Court of Appeals in this case (153
F.2d 212, 223) as the ‘Work product of the lawyer.’ Were such materials open to
opposing counsel on mere demand, much of what is now put down in writing
would remain unwritten. An attorney's thoughts, heretofore inviolate, would not
be his own. Inefficiency, unfairness and sharp practices would inevitably develop
in the giving of legal advice and in the preparation of cases for trial. The effect on
the legal profession would be demoralizing. And the interests of the clients and
the cause of justice would be poorly served.”
{¶ 55} Addressing these concerns, the work-product doctrine provides a
qualified privilege protecting the attorney’s mental processes in preparation of
litigation, establishing “a zone of privacy in which lawyers can analyze and
prepare their client's case free from scrutiny or interference by an adversary.”
Hobley v. Burge (C.A.7, 2006), 433 F.3d 946, 949. However, as the Supreme
Court of the United States has explained, “the doctrine is an intensely practical
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one, grounded in the realities of litigation in our adversary system,” and the
privilege afforded by the work-product doctrine is not absolute. United States v.
Nobles (1975), 422 U.S. 225, 238 and 239, 95 S. Ct. 2160, 45 L. Ed. 2d 141.
{¶ 56} Civ.R. 26(B)(3) describes the work-product doctrine as it applies
in civil cases in Ohio: “Subject to the provisions of subdivision (B)(5) of this rule
[relating to retained experts], a party may obtain discovery of documents,
electronically stored information 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.”
{¶ 57} In Jackson v. Greger, 110 Ohio St. 3d 488, 2006-Ohio-4968, 854
N.E.2d 487, we examined the meaning of “good cause,” stating that “a showing
of good cause under Civ.R. 26(B)(3) requires demonstration of need for the
materials - i.e., a showing that the materials, or the information they contain, are
relevant and otherwise unavailable. The purpose of the work-product rule is ‘(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 efforts.’ Civ.R. 26(A). To that end, Civ.R. 26(B)(3) places a burden on the
party seeking discovery to demonstrate good cause for the sought-after materials.”
Id. at ¶ 16.
{¶ 58} While the protections for attorney work product provided in Civ.R.
26(B)(3) expressly apply to “documents, electronically stored information and
tangible things prepared in anticipation of litigation,” protection also extends to
intangible work product. Hickman, 329 U.S. at 511, 67 S. Ct. 385, 91 L. Ed. 451;
In re Cendant Corp. Securities Litigation (C.A.3, 2003), 343 F.3d 658, 662;
United States v. One Tract of Real Property (C.A.6, 1996), 95 F.3d 422, 428, fn.
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10; 8 Wright, Miller, Kane & Marcus, Federal Practice and Procedure (3d
Ed.2009), Section 2024. The protection for intangible work product exists
because “[o]therwise, attorneys’ files would be protected from discovery, but
attorneys themselves would have no work product objection to depositions.” In
re Seagate Technology, L.L.C. (C.A.Fed., 2007), 497 F.3d 1360, 1376.
{¶ 59} When the attorney-client relationship has been put at issue by a
claim for legal fees or by a claim that the attorney breached a duty owed to the
client, good cause exists for the production of attorney work product to the extent
necessary to collect those fees or to defend against the client’s claim. See
Holmgren v. State Farm Mut. Auto. Ins. Co. (C.A.9, 1992), 976 F.2d 573, 577
(“We agree with the several courts and commentators that have concluded that
opinion work product may be discovered and admitted when mental impressions
are at issue in a case and the need for the material is compelling”); Morrow v.
Brown, Todd & Heyburn (Ky.1997), 957 S.W.2d 722, 726 (“While an attorney's
private thoughts are most certainly deserving of special protection, that concern
for privacy must give way when the activities of counsel are directly at issue in
subsequent litigation”); 20 Wright & Kane, Federal Practice & Procedure
Deskbook (2009), Section 87 (“It also has been held that opinion work product is
discoverable if the strategy and mental impressions of a party’s agents and
attorneys are directly at issue in the case and the information could not be
obtained elsewhere”); Restatement (Third) of the Law Governing Lawyers,
Section 92, Comment c (“A party who asserts that a lawyer's assistance was
defective may not invoke work-product immunity to prevent an opposing party's
access to information concerning the claim”); Anderson, Cadieux, Hays, Hingerty
& Kaplan, The Work Product Doctrine (1983), 68 Cornell L.Rev. 760, 831
(“When an attorney’s mental impressions, theories, or conclusions are ‘at issue’ in
a suit, courts have held that the documents containing these thoughts are
discoverable”).
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{¶ 60} Thus, attorney work product, including but not limited to mental
impressions, theories, and legal conclusions, may be discovered upon a showing
of good cause if it is directly at issue in the case, the need for the information is
compelling, and the evidence cannot be obtained elsewhere.
{¶ 61} Here, attorney work product, including information sought from
King and Garfinkel regarding the staffing of the butter-flavor litigation, trial
strategy, resources committed, and views that the firm provided inadequate
representation through counsel lacking sufficient leadership, qualification, and
experience, is directly at issue, since the reasonable value of the legal services
performed by Squire Sanders and the quality of its legal work are the pivotal
issues in this lawsuit, and the need for this evidence is compelling. See Morrow,
957 S.W.2d at 726 (“We are of the view that the opinion work product sought to
be discovered must be directed to the pivotal issue in the subsequent litigation and
the need for the material must be compelling”).
{¶ 62} In propounding its interrogatories and in questioning King and
Garfinkel, Squire Sanders sought the factual bases underlying Givaudan’s
allegations that Squire Sanders had breached its contractual and professional
duties and overcharged for its services. King and Garfinkel’s mental impressions
regarding the defense of the butter-flavor litigation relate directly to and are
necessary for determining the truth of these allegations, because their evaluation
of Squire Sanders’ performance allegedly shaped Givaudan’s decisions on how to
defend the litigation and on whether to continue the representation and pay the
firm’s fees. This information is otherwise unavailable to Squire Sanders because
it is within the exclusive possession and knowledge of Givaudan, King, and
Garfinkel.
{¶ 63} Accordingly, testimony of King and Garfinkel and documents
related to the value and quality of the legal services rendered by Squire Sanders
are not protected from discovery in this case by the work-product doctrine.
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Conclusion
{¶ 64} Ohio recognizes a common law self-protection exception to the
attorney-client privilege codified in R.C. 2317.02(A). Thus, when the attorney-
client relationship has been placed at issue in litigation between an attorney and a
client or a former client, the self-protection exception permits discovery of the
evidence necessary to establish a claim or defense on behalf of the attorney.
{¶ 65} Similarly, good cause exists for discovery of otherwise unavailable
attorney work product to the extent that the work product has been placed at issue
in litigation by a claim for legal fees or by a charge that the attorney breached a
duty owed to the client.
{¶ 66} Accordingly, the judgment of the court of appeals is reversed, and
the cause is remanded to the trial court, which has already made a finding of good
cause requiring Givaudan to produce the requested documents, testimony, and
other evidence. Therefore, the trial court is instructed to conduct further
proceedings consistent with this opinion and its earlier journalized orders.
Judgment reversed
and cause remanded.
PFEIFER, LUNDBERG STRATTON, O’CONNOR, and CUPP, JJ., concur.
LANZINGER, J., concurs in judgment only.
BROWN, C.J., not participating.
__________________
LANZINGER, J., concurring in judgment only.
{¶ 67} I concur in judgment only because I cannot agree with the
distinction the majority makes between exceptions to and waivers of the attorney-
client privilege in order to circumvent this court’s holding in Jackson v. Greger,
110 Ohio St. 3d 488, 2006-Ohio-4968, 854 N.E.2d 487. I did not agree in Jackson
that R.C. 2317.02(A) abrogates the common-law privilege. Id. at ¶ 25 (Lanzinger,
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J., concurring in judgment only). Therefore, I have no problem with recognizing
a common-law exception to the attorney-client privilege.
{¶ 68} However, in its attempt to distinguish waiver from exception, the
majority uses overly broad language and declares that an exception “falls into the
category of situations in which the privilege does not attach to the
communications in the first instance and is therefore excluded from the operation
of [R.C. 2317.02].” What the majority fails to recognize is that an exception, like
a waiver, arises because of some action taken by the client. It is only when the
client puts the attorney’s representation at issue that the privilege no longer
applies. The majority, however, would retroactively apply that action and hold
that the privilege never existed.
{¶ 69} Because I believe that common-law exceptions are really no
different than common-law waivers, I concur in judgment only.
__________________
Jones Day, John M. Newman Jr., Louis A. Chaiten, Pearson N. Bownas,
Matthew P. Silversten, and Eric E. Murphy, for appellant.
Hermann, Cahn & Schneider, L.L.P., Anthony J. Hartman, Jay H.
Salamon, and Hugh D. Berkson; and Mitchell, Silberberg & Knupp, L.L.P., and
Jeffrey L. Richardson, for appellee.
Vorys, Sater, Seymour & Pease, L.L.P., Sandra J. Anderson, and Michael
J. Hendershot; and Eugene P. Whetzel, urging reversal on behalf of amicus curiae,
Ohio State Bar Association.
______________________
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