Maddox v. Greene Cty. Bd. of Commrs.
2014 Ohio 1541
Ohio Ct. App.2014Background
- Maddox sues the Greene County Board of Commissioners for alleged sunshine-law violations under R.C. 121.22, covering Oct. 2010–Dec. 2012 and continuing to the filing of suit in June 2013.
- Board answered that it acted on advice of counsel during the pertinent period.
- Reid, a former commissioner, testified about when she learned minutes must be kept; counsel’s presence in the room was contested as privilege-protected.
- Board moved for protective order to prevent deposition questions about the advice of counsel; the trial court overruled.
- Board argues the attorney-client privilege cannot be waived under R.C. 2317.02(A) and that common-law implied waivers apply; Maddox contends the privilege was waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court correctly found waiver of the attorney-client privilege | Maddox argues the Board’s pleadings admitting reliance on counsel constitutes waiver | Board contends no waiver under statute; implied waivers do not apply | Waiver found; Board failed to establish privilege applicability and implied waiver applies |
| Whether common-law implied waiver applies despite Jackson v. Greger | Maddox relies on implied-waiver doctrines | Board argues Jackson forecloses implied-waiver under the statute | Common-law implied waiver discussed but ultimately not required; waiver found via Board’s adv. of counsel defense |
| Whether Reid’s deposition testimony itself waived the privilege | Maddox asserts Reid’s testimony regarding counsel was disclosure of privileged communications | Board contends testimony alone would not waive privilege; Board’s defense still implicates privilege | Waiver existed through the Board’s admission in its answer and related pleadings, not solely through Reid’s testimony |
| Whether Poston’s participation affected the privilege status | Maddox argues presence of county administrator did not create privilege | Board contends presence could affect privilege scope | Presence alone does not create privilege; under facts, no applicable privilege shield |
Key Cases Cited
- Jackson v. Greger, 110 Ohio St.3d 488 (2006-Ohio-4968) (statutory breadth of privilege; common-law implied waiver inapplicable where statute applies)
- Meyers Roman Friedberg & Lewis v. Malm, 183 Ohio App.3d 195 (2009-Ohio-2577) (assertion of advice of counsel as waiver under R.C. 2317.02(A))
- In re Heile, 65 Ohio App. 45 (1st Dist. 1939) (communications through an agent may be privileged if confidential between attorney and client)
- Kremer v. Cox, 114 Ohio App.3d 41 (9th Dist.1996) (attorney-client privilege and waiver principles in Ohio)