2021 Ohio 2724
Ohio2021Background:
- In 2004 the Clermont County Prosecutor’s Office prepared a legal-opinion letter for County Auditor Linda Fraley concerning conduct later challenged by relator Christopher Hicks.
- In 2018 Hicks filed a private-citizen affidavit alleging Fraley committed a crime; a special prosecutor referenced the August 5, 2004 opinion letter at a probable-cause hearing and the municipal court made the letter part of the record but allowed it to be filed under seal, stating it remained subject to attorney-client privilege.
- In July 2020 Hicks requested the August 5, 2004 opinion letter under the Ohio Public Records Act; the county prosecutor (acting as Fraley’s counsel) denied the request claiming attorney-client privilege.
- Hicks filed this mandamus action to compel production; the Supreme Court ordered the letter submitted for in camera review and heard briefs.
- The Court held Fraley waived the attorney-client privilege by voluntarily disclosing the entire opinion letter to the special prosecutor (an adverse party), so the letter is no longer exempt from public-records disclosure.
- The Court granted the writ and awarded court costs, but denied Hicks’s requests for attorney fees and statutory damages because a reasonable official could have believed the document remained privileged given the municipal court’s sealing order.
Issues:
| Issue | Plaintiff's Argument (Hicks) | Defendant's Argument (Fraley) | Held |
|---|---|---|---|
| Whether the 2004 opinion letter is exempt from disclosure under the attorney-client privilege | Letter is not privileged because Fraley waived privilege by disclosing the letter or its contents | The letter is privileged and not waived; special prosecutor’s access did not constitute a third-party disclosure | Waiver: privilege was waived when Fraley voluntarily gave the entire letter to the special prosecutor (an adverse party); letter is not exempt |
| Whether asserting or relying on advice-of-counsel defense waived privilege | Fraley relied on the letter to defend against Hicks’s allegations, so privilege is waived | Fraley did not assert an advice-of-counsel defense; special prosecutor submitted the letter, not Fraley | No advice-of-counsel waiver here—Fraley did not assert she acted on that advice; waiver rests on voluntary disclosure instead |
| Whether disclosure to the special prosecutor was non-waiving because the special prosecutor had access or acted for the county prosecutor | Disclosure was effectively internal or inevitable, so privilege survives | Special prosecutor’s appointment did not make him Fraley’s counsel; he was adversarial and outside the attorney-client relationship | Disclosure to the special prosecutor waived privilege because he was outside Fraley’s attorney-client relationship and was adverse in the investigation/prosecution |
| Remedies: redaction, costs, attorney fees, statutory damages | Entire letter should be produced; Hicks seeks costs, fees, and statutory damages | If produced, Fraley sought redactions; contests fees/damages | No redaction warranted (entire letter was disclosed previously); court costs awarded as mandatory; attorney fees and statutory damages denied because a well-informed official could reasonably have believed the document remained exempt given the sealing order |
Key Cases Cited
- State ex rel. Besser v. Ohio State Univ., 87 Ohio St.3d 535 (2000) (attorney-client communications to government clients are protected from public disclosure)
- State v. Post, 32 Ohio St.3d 380 (1987) (voluntary disclosure to third parties waives attorney-client privilege)
- State v. McDermott, 72 Ohio St.3d 570 (1995) (same principle on waiver by disclosure)
- State ex rel. Dawson v. Bloom-Carroll Local School Dist., 131 Ohio St.3d 10 (2011) (voluntary disclosure of privileged document waives public-records exemption)
- State ex rel. Cincinnati Enquirer v. Dupuis, 98 Ohio St.3d 126 (2002) (voluntary disclosure waives exemption under the Public Records Act)
- State ex rel. Zuern v. Leis, 56 Ohio St.3d 20 (1990) (waiver by disclosure in prior litigation defeats public-records exemption)
- Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (employer defenses that place internal investigations at issue can imply waiver in discrimination litigation)
- Hudson v. Greater Cleveland Reg’l Transit Auth., 168 N.E.3d 606 (Ohio Ct. App. 2021) (addressing waiver and scope of privilege for investigatory reports; discussed but distinguished)