2022 Ohio 3743
Ohio Ct. App.2022Background
- Bruno Verbanac was indicted on multiple sexual-offense-related counts involving a minor victim; Michael Goldberg originally represented him.
- On August 12, 2020, Verbanac met with Goldberg; Verbanac then invited his fiancée L.M. into the meeting. L.M. is the mother of the alleged victim’s sibling and planned to support Verbanac.
- Verbanac moved in limine to bar L.M.’s testimony as protected by attorney-client privilege; the trial court found the three-way meeting waived privilege as to communications made in L.M.’s presence and denied the motion.
- Goldberg later withdrew; the state subpoenaed Goldberg to testify at trial about the August 12 meeting. At a pretrial hearing, the trial court ordered Goldberg to testify to “any statements made in his presence at the meeting in his office on August 12, 2020 by any person, including his client.”
- Verbanac appealed the order; the appellate court held the order was final and appealable, found the trial court’s grant overly broad because it did not distinguish the private attorney-client portion of the meeting, vacated the order, and remanded for a narrower directive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order compelling Goldberg to testify was final, appealable | State: order compelling testimony resolves privileged-matter discovery and is immediately appealable | Verbanac: (implicitly) appeal should await final judgment | Court: order is a final, appealable order under R.C. 2505.02(B)(4) and Burnham; jurisdiction exists |
| Whether Goldberg can be compelled to testify about the three-way meeting (Goldberg, Verbanac, L.M.) | State: trial court previously found privilege waived as to that meeting; Goldberg may be called to testify about it | Verbanac: attorney shouldn’t be forced to testify; other witnesses (L.M.) can provide same evidence | Court: trial court did not err in compelling testimony about the three-way meeting because the court had found waiver under R.C. 2317.02(A)(1) |
| Whether Goldberg can be compelled to testify about the private one-on-one conversation with Verbanac the same day | State: (limited) did not intend to question about purely private convo; trial court’s order included all statements | Verbanac: one-on-one communications remain privileged absent express waiver or voluntary disclosure | Court: order was overly broad; attorney cannot be compelled about one-on-one privileged communications absent client consent or statutory waiver; remand for narrowed order |
| Whether Professional Conduct Rule 1.6 prevents compulsion to testify | Goldberg: compelled testimony would violate confidentiality rule; rule uses "may" suggesting attorney discretion | State: Prof.Cond.R. 1.6(b)(6) permits disclosure to comply with a court order | Court: Rule 1.6(b)(6) allows compliance with court orders; compulsion by order is permissible (no bar), but testimony must be limited to waived subject matter |
Key Cases Cited
- State v. McDermott, 651 N.E.2d 985 (Ohio 1995) (R.C. 2317.02 provides the exclusive statutory means to waive attorney-client testimonial privilege)
- Burnham v. Cleveland Clinic, 89 N.E.3d 536 (Ohio 2016) (order compelling production of allegedly privileged materials is a final, appealable order under R.C. 2505.02(B)(4))
- Squire, Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp., 937 N.E.2d 533 (Ohio 2010) (attorney-client privilege promotes candid attorney-client communications)
- Swidler & Berlin v. United States, 524 U.S. 399 (U.S. 1998) (discusses the importance and scope of the attorney-client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (attorney-client privilege furthers full and frank communication between client and lawyer)